Property division Flashcards
Approaches to property divisions
There are 3.
1. Community propery
2. Equitable division of all the property
3. Equitable division of marital property : each spouse takes their separate property, the court only divides the propery acquired during the marriage.
2-step process
- Classification (what is spearate property/marital property)
- divide : equitable division of the marital estate.
Property distribution decrees are not modifiable
Equitable does not mean equal.
What counts as
Separate property?
- Property owned before marriage
- Aquired by gift or inheritance
- Aquired in exchanged for separate property
- Income and appreciation of separate property (pas toujours)
- Pain and suffering awared
- Personal damages
- Property aquired after an order of legal separation
what counts as
Marital Property?
- Property acquired during the marriage
- Earnings
- Employment benefits
- Lost wages
How may separate property become marital property?
- Commingling (separate property inextricably intertwined with marital property
- –> joint bank account)
- Transmutation (separate property used in a way that evidences an intention for it to be marital property)
What happens to improvements of separate property?
- When improved by marital funds/efforts, most courts hold that the ** property itself remains separate** but grand the marital estate/ spouse reimbursement from the value added.
Increase in value due to market factors remains separate value.
What happens to property acquired before mariage but paid for after?
Courts are split here.
Majority view = property should be apportionned between separate and marital estates in proportion to the contribution of separate and marital funds to pay for the property.
What happens to pensions?
The portion of the pension earned during a marriage is marital property subject to distribution.
What happens to professional licenses or degrees.
These are not distributable but may be compensated by alimony to the suppporting spouse.
How is the equitable division operated?
Trial court given great deal of discretion.
The courts division is not subject to modification once the divorce is final.
Factors considered include:
- age, education, background, earnings
- duration of the marriage
- standard of living
- health of parties
- child custody provisions
- economic fault (whether either party has dissipated marital property to go on lavish trips with a mistress or to by expensive gifts).
Ex-parte divorce effects on property division
In an ex parte divorce (only one spouse is before the court), the court can grant the divorce but it may it cannot award spousal support or divide- out-of-state property.
It does not have jurisidiction over that spouse + property.
Exception: the court may divide property located within the State
PJ important here because…
The Court must have PJ over both parties to distribute assets!
