Property Division Flashcards
Can a court divide marital property if it does not have jurisdiction over both spouses or property?
Generally, a court cannot determine out-of-state property rights or rights to support unless it has jurisdiction over both parties. In an ex parte divorce, the court can grant the divorce but cannot award spousal support or divide out-of-state property. There is a limited exception for marital property located within the state.
Martial property distribution - general rule
Courts have the authority to order an equitable distribution of all marital property no matter how title is held. All assets acquired during marriage are deemed martial property, unless acquired through gift, bequest, devise, or descent. Courts look at a donor’s intent when a gift is given to both parties, and wedding gifts are classified as martial property. A court must have personal jurisdiction over both parties to distribute assets (courts have personal jurisdiction over residents). Equitable distribution considers factors such as the earning capacity of each party, duration of the marriage, the standard of living during the marriage, the source of money used to purchase the martial assets, the parties’ health and needs, custody of minor children, and each party’s contribution to the marriage. Marital fault is generally not a factor in the division of property, although some courts will consider it to the extent it led to a dissipation of assets.
Property was acquired before the marriage but partially paid for after the marriage?
If property is acquired before the marriage, but paid for after marriage with martial funds, most courts will apportion the property between separate and marital interests in proportion to the contribution of separate and martial funds used to pay for the property.
Professional license or degree - distributable?
Most jurisdictions have ruled that neither a spouse’s earning capacity nor the professional license or degree on which it is based is distributable. A license or degree has none of the usual attributes of property - it cannot be purchased, transferred, or inherited. A license or degree is not classified as marital property even when its attainment was made possible through the support of the other spouse. To avoid unfair results, some jurisdictions have compensated supporting spouses for their contribution in other ways, such as by: employing the theory of unjust enrichment, making a supporting spouse’s contribution a factor on which alimony may be based, and awarding reimbursement alimony. In a growing minority of states that hold that a license is subject to equitable distribution, a court may award a percentage of its value to the other spouse, usually in the form of additional marital property or as alimony.
