Category: non marital property

What Can I Take When I Leave the Marital Home?

What Can I Take When I Leave the Marital Home?

A point of concern when someone is preparing for a divorce is “What can I take with me?”  Although there is no requirement in Kentucky that divorcing spouses actually set up separate residences, it is usually better in terms of reducing the stress if the parties do not continue to live together.  Once the decision to leave has been made, it can be confusing about what you can and cannot take with you.

Generally, there is no dispute that when a person moves out, he/she can take their personal items, clothes, toiletries, small items of personal property with negligible value, etc.  This is also the case for your non-marital property that you owned prior to the marriage or, perhaps, inherited from someone or received as a gift.
There tends to be more dispute over bigger ticket items such as furniture, electronics, artwork, expensive jewelry, etc.  Usually there are fewer of these larger ticket items so there is more contention over who should receive them.  (“I want the big screen TV!” “No, I want it!”)  What happens then?
First and foremost, you need to consider whether the court has entered a status quo order or other restriction on removing property from the home.  Consult with your attorney, but normally even if a status quo order has been entered, it will not prohibit either party from removing property from the marital residence.  Nevertheless, depending on the facts and circumstances of your case, something more specific may have been ordered.  Regardless, even if you are not prohibited from taking the property from the residence, a status quo order would prohibit you from selling, damaging or concealing the property.  It is absolutely vital that you avoid violating the court’s order.  If you do violate it, you could be held in contempt and subject to fines, attorney fees and possibly even time in jail.
With that being said assuming there is no order prohibiting you from removing property, you can remove pretty much anything you can get through the door that is either yours or is marital property.  Keep in mind that if it is marital property, whatever you remove will come off of your share of the marital estate so it is important that you keep detailed records of everything that you remove.  However, it is much easier to hold onto a piece of property throughout litigation than it is to force the other party to turn it over.  As always be sure to consult with your attorney before you make any decisions.
Photo courtesy of Atomic Taco
Should I Get a Prenuptial Agreement?

Should I Get a Prenuptial Agreement?

Many people who have felt the sting of a divorce decide to once again take the plunge and tie the know once again.  When they do, they often want to minimize the chance of going through the divorce experience again.  That is where a prenuptial agreement comes in.

Prenuptial agreements are also called antenuptial agreements, premarital agreements, or prenups.  Prior to approximately 1990 they were not even allowed in the Commonwealth of Kentucky because it was believed that they would actually encourage divorce.  A Kentucky Supreme Court case allowed couples to determine how their assets and debts would be divided in the event of a divorce thereby bringing Kentucky into line with a number of other states on this issue.

The issue of whether you should even bother with a prenuptial agreement really depends on your situation.  If either one of the soon-to-be-spouses has significant assets that they wish to keep separate from the other spouse, a prenuptial agreement is a definite consideration.  If neither party is coming into the marriage with any significant financial holdings, there probably is no real need for one.

If you have determined that a prenuptial agreement is something that you want to consider, it is important to understand what can be covered and what cannot.  Moreover, the actual drafting and way the document is executed is important as well.

A prenuptial agreement can cover a number of issues such as:

  • What property is each party’s non-marital property
  • What property will remain each party’s non-marital property
  • How marital property will be determined in the event of a divorce
  • How each party’s property will be divided in the event of a divorce or even death
  • How debts will be divided in the event of a divorce
  • The effect commingling assets will have in the event of a divorce
  • How income and appreciation in value of assets will be treated in the event of a divorce
  • What happens to each spouse’s retirement benefits in the event of a divorce
  • Whether maintenance will be awarded and how much

A prenuptial agreement cannot deal with any issues involving child custody or the payment of child support.  Those issues will have to be decided upon either by agreement of the parties in event of a divorce with approval by the court or the court will have to make the final decision.  The reason for this is that the court is the final arbiter of child custody and, more specifically, the child’s best interest in the event of a couple’s divorce.  That decision cannot be predetermined prior to the marriage even taking place.  Additionally, child support is typically seen as a right of the child which cannot be bargained away by either parent prior to the divorce.  In fact, many judges are loathe to allow child support to be waived absent a showing of good cause in the event of an actual divorce.

In a future post, we will discuss the actual execution and enforceability of a prenuptial agreement.  For now, if you think a prenuptial agreement may be right for you, it is important that you meet with your family law attorney, estate planning attorney and financial adviser to discuss your options.

Photo courtesy of scienceatlife

Marital Property: I Paid For Everything! Why Should My Spouse Get Anything?!?

Marital Property: I Paid For Everything! Why Should My Spouse Get Anything?!?

Many people go into a marriage and never fully commit to the marriage being a joint effort.  They keep separate bank accounts.  They divide up their bills so that the husband pays certain bills and the wife pays certain bills.  Even if they do not go the point of keeping everything divided, in their mind nothing ever becomes “ours.”  Everything is thought of in terms of mine and the other spouse’s.  Those people get a very rude awakening when they go through a divorce.

In Kentucky, a court is going to presume that anything that is acquired during the marriage is marital property.  The few exceptions are property or money that is acquired during the marriage as a gift, an inheritance, income derived from pre-marital property without any joint efforts of the parties, or property/income that can be traced back to one of those types of properties.  That means that money you earn through your employment is marital property.

When you spend that money to purchase things or make a payment on the house or car, you are accumulating marital property.  Marital property is what the court divides in a divorce case.  Regardless of whether your spouse also directly contributed money from his/her income to purchase the thing or make the house or car payment, he/she will be entitled to a share of that property.  Courts take a very broad view of what is marital property and how it should be divided.  Even when one spouse does not work outside of the home, the court is required to consider the contributions that spouse made to the marriage as a homemaker and stay-at-home parent.  Therefore, unless absolutely everything that was acquired during the marriage was paid for with non-marital funds, it will be divided by the court.

When you get married very little you acquire during the marriage remains “yours” or “mine.”  Most everything becomes “ours.”  Understanding this will make it much easier for you to get your case resolved quickly and efficiently.

Photo courtesy of David Goehring

You Can Annul a Divorce in Kentucky

You Can Annul a Divorce in Kentucky

You have been divorced.  You went through the arduous process.  Perhaps, you and your now ex-spouse even duked it out in court.  You reached a settlement agreement or the judge made rulings on child custody and dividing your property and debts.  Now tempers have cooled.  You are talking civilly to one another, maybe even went on a date.  Cupid’s arrows are flying.  You have decided to get back together.  It’s as easy as simply getting remarried right?  Not necessarily.

First of all consider the fact that by some statistics, the rate of divorce in second marriages is in the neighborhood of sixty percent.  Allegorically speaking from practicing family law for years, I can say that the rate of divorce for second marriages to the same person tends to be even higher.  However, hope springs eternal.  Nevertheless, remarriage may not be the best option.

A little used provision of Kentucky law actually allows a couple who wish to get back together to annul their divorce.  This action actually voids the divorce decree and any separation agreement.  The effect is that the divorce decree or separation agreement has no legal effect as though it never happened.  That means that anything that was marital property before the divorce is once again marital property.  It may also be used to prevent a lapse in coverage of health insurance since most employer plans will automatically drop a former spouse.  If the divorce is annulled, the insurer should recover the spouse and, arguably, cover the period of any lapse assuming premiums were appropriately paid for family plan coverage.

If you choose not to annul the divorce, get remarried and then realize that you just cannot make the marriage work for a second time it could have a major effect on your second divorce.  The property that was divided in the first divorce remains each party’s separate non-marital property.  Remember non-marital property includes property owned prior to the marriage, even a second marriage to the same person.  This may or may not simplify the second divorce, but it usually comes as a surprise to at least one of the parties who assumed everything went back to being marital property by virtue of the marriage ceremony.

These are not easy issues to handle.  When Cupid’s arrows start flying, you might be wise to get out of the way.

Photo courtesy of Hans Splinter