Frequently Asked Questions Regarding Family Law
I owned a house before I got married. I did not add my spouse’s name to the Deed. Now that we are getting divorced, does my spouse have a claim to the house?
Answer:
Yes and No. Prior to answering this question it is necessary to understand the concept of "Marital Property" and "Non-Marital Property."
Assets (and debts) are classified as "Marital Property" are subject to what is known as "Equitable Distribution." Equitable Distribution is the process by which Marital Property is distributed between each spouse. Non-Marital Property is not subject to Equitable Distribution.
In the situation you described, only the increase in value of the house from the date of marriage to the date of separation – which will be determined by an appraisal - would be considered "Marital Property" and subject to Equitable Distribution. That reason for this is that the house remained titled in your name.
However, if you transferred the house into joint names with your spouse, you will be considered to have made a "gift" to the marriage, and as a result the house’s entire value of would be considered "Marital Property" and subject to Equitable Distribution.
In your last response, you mentioned that classifying an asset (or debt) as “Marital Property” is important in the Equitable Distribution process. What is “Marital Property”, and how is it different from "Non-Marital Property"?
Answer:
Marital Property is any asset acquired - or debt incurred - by either spouse during the marriage through the date of separation. It does not matter how the asset or debt is titled. For example, a 401k account is only titled in the name of one spouse, but all contributions and earnings during the marriage are considered marital assets.
Similarly, even if a credit card is only titled in one spouse’s name, any charge incurred during the marriage is considered a marital debt, and as such the entire credit card balance can be considered in Equitable Distribution.
There are exceptions to this rule. For example, any inheritance or gift received by one spouse during the marriage is not considered Marital Property, unless that gift or inheritance is (a) used to purchase an asset in joint names and/or (b) deposited into a jointly-titled account. In those instances, the entire value of the gift and/or inheritance is considered as having been "gifted" to the marriage and considered marital asset.
To further, complicate matters, even if the gift or inheritance is placed into a account titled only in the recipient spouse’s name, any increase in value on that account between the date of the gift or inheritance and date of separation is considered Marital Property.
My former spouse/mother/father has primary physical custody of our children, and I am paying child support. However, every time I see my children, they are wearing old clothes and always seem to need school items or other necessities. Am I entitled to an accounting from the other party as to how they are spending the child support?
Answer:
No. You have no right to ask the custodial parent how he or she spends the child support you pay. The one exception is if you are being asked to pay for (or reimburse the other parent) for a child’s medical, dental, prescription and/or orthodontic costs. In all child support Orders, the custodial parent is required to pay the first $250 per child/per calendar year for out of pocket expenses, after which you are required to pay the percentage of those costs specified in the Order. In those cases, you are entitled to documentation (a) proving that the custodial parent has paid the first $250 and (b) the invoice (or proof of payment if the custodial parent paid the entire amount).
My spouse and I have decided to separate and have agreed on how to divide our assets. Can you represent both of us in the divorce case?
Answer: No. Under the Rules of Professional Responsibility and Code of Ethics, an attorney may only represent one party in a divorce case. Further, the lawyer can only give legal advice to his or her client. It is extremely unwise to represent yourself in a divorce proceeding.
A friend of mine who went through a divorce told me she is getting more child support/alimony/property than I am getting. Why can't I get the same?
Answer:
Many times in divorce/custody/child support proceedings you will hear from relatives and friends about their own experiences. However, you must remember that every case is unique and comparing any two cases is like comparing apples to oranges. Even if you have been through a divorce previously, your current case will be much different that the prior experience.
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