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Are divorces no-fault or fault-based?

It depends upon individual state law. Some states allow both fault divorce and no-fault divorce. In other words, a party may petition for divorce, alleging fault on their spouse. A prime example is adultery. If one party committed adultery, the other party can petition for a divorce on fault grounds. However, another common ground for divorce is "irreconcilable differences,"—a legal term that covers situations when two people simply feel that they have grown apart. That often would be a no-fault ground for divorce.

The question becomes whether a party's faulty conduct may limit his or her recovery in the divorce. Again, this depends upon the laws of individual states. Some states allow fault-based divorces in which one party's recovery of marital property may be limited by their own culpable conduct. Other states, such as Tennessee, are no-fault states, meaning that the distribution of marital property generally is done without attribution of fault.

If a couple owns a home, how does the court determine who gets the house if they desire a divorce? Several factors are considered by the courts in doing so (iStock).

If a couple owns a home, how does the court determine who gets the house if they desire a divorce? Several factors are considered by the courts in doing so (iStock).

How does a court determine whether property is marital/community property or separate property?

Generally speaking, property acquired during the course of a party's marriage is considered marital property, meaning that it is subject to an equitable division by the courts. Property that a party had before entering into marriage may well be considered separate, non-marital property. Courts do not have the power to apportion separate, non-marital property. In many states, if one party inherits money from her parents, that property also would be considered separate property.

How can a spouse ensure that property remains separate?

In some states a spouse can actually go to the recorder's office in the county in which he or she resides and file a record or schedule of his or her separate property. This creates a presumption that such property is, and was at the time of the filing, separate property of that filing spouse. Again, one must check his or her individual state law to see if such an option exists.

Can separate property be converted to marital property during the course of a marriage?

It can depending upon the particular circumstances. If a party clearly intended to convert separate property into marital property, then it becomes marital property. Wis-

LegalSpeak: Wisconsin Law on "Mixed Property"—Wis. Stat. § 766.63

(1) Except as provided otherwise in ss. 766.61 and 766.62, mixing marital property with property other than marital property reclassifies the other property to marital property unless the component of the mixed property which is not marital property can be traced.

(2) Application by one spouse of substantial labor, effort, inventiveness, physical or intellectual skill, creativity or managerial activity to either spouses property other than marital property creates marital property attributable to that application if both of the following apply:

(a) Reasonable compensation is not received for the application.

(b) Substantial appreciation of the property results from the application.

consin law defines a category called "mixed property," describing when separate property commingles or mixes together with marital property.

How does a court determine how to apportion marital property?

This varies from state to state. Law in many states provide a great deal of discretion to trial courts to apportion marital property, as it deems just. Many states provide a list of factors that a court considers in making its decision. For example, Missouri law (Mo. Rev. Stat. § 452.330.1 [2008]) provides that courts should consider the following five factors in apportioning marital property:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;

(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(3) The value of the nonmarital property set apart to each spouse;

(4) The conduct of the parties during the marriage; and

(5) Custodial arrangements for minor children.

In some states, courts start with a presumption that the marital property should be distributed relatively equally. But, then the parties can rebut that presumption by presenting evidence of marital fault or substantial contributions by one spouse. For example, Indiana law (Ind. Code Ann. § 31-15-7-5 [2008]) provides as follows:

The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:

(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.

(2) The extent to which the property was acquired by each spouse:

(A) before the marriage; or

(B) through inheritance or gift.

(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.

(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.

(5) The earnings or earning ability of the parties as related to:

(A) a final division of property; and

(B) a final determination of the property rights of the parties.

Is a party's retirement account considered marital or separate property?

This depends on individual state law. In some states it depends on whether the retirement account accrued before the parties's marriage. Another pertinent factor is whether both parties contributed to the appreciation of the asset.

 
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