Bingaman Hess has extensive experience in representing individuals pertaining to all aspects of domestic relations and family law.
Our areas of expertise include:
- Custody and Visitation
- Equitable Distribution of Assets
- Child Support
- Alimony and Alimony Pendente Lite
- Prenuptial Agreements
Family Law Questions
I bought a house before marriage with my own money, and it remained titled in my name alone during the marriage. Now that we are getting divorced, does my spouse have a claim to the house?
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) that 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 this situation, only the increase in value of the house from the date of marriage to the date of separation is considered “Marital Property” and subject to Equitable Distribution, because the house remained titled in the name of the individual who purchased it prior to the marriage. An appraisal will be needed to determine the home’s value for purposes of Equitable Distribution.
However, if after the marriage the house was transferred into the names of both spouses, then it is considered a “gift” to the marriage, and the entire value of the home is considered “Marital Property” subject to Equitable Distribution.
In the 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”?
Marital Property is any asset acquired (or debt incurred) by either spouse during the marriage. It does not matter how the asset or debt is titled. For example, a 401(k) account is only titled in the name of one spouse, but all contributions during the marriage are considered Marital Property.
Similarly, a balance on a credit card in the name of only one spouse that was incurred during the marriage is considered a Marital Debt, and as such 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 used to purchase an asset in joint names, or deposited in a jointly-titled account. Then the gift or inheritance is considered as having been “gifted” to the marriage and all of it is considered Marital Property.
To further, complicate matters, even if the gift or inheritance is placed into a account titled only in the name of the recipient spouse, any increase in value on the account between the date of the gift or inheritance is considered Marital Property.
My former spouse/mother/father of my children has primary physical custody of them, and I am paying child support. However, every time I see my children they are wearing old clothes and always seem to be in need of school items or other necessities. Can I ask for an accounting by the custodial parent for the child support e or she receives?
No. You have no right to ask the custodial parent how he or she spends the child support you pay. However, if you are being asked to reimburse and/or contribute for medical expenses over and above the $250 per child/per year deductible then you are entitled to documentation of the expense you are being asked to pay, as well as proof that the custodial parent paid the $250 deductible.
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?
No. Under the Rules of Professional Responsibility and Code of Ethics, and 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?
Many times in divorce/custody/child support proceedings you will likely hear from relatives and friends about their own experiences. However, you must remember that every divorce 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 likely be much different than the prior experience.