Question: My current husband (63) and I (60) married, each for the second time, nearly 22 years ago. I have two children by my prior marriage who lived with us for a few years but who were largely supported by my former husband's child support payments, and who have been independent for the past ten years. On the other hand, since our marriage, my husband has paid rather heavy child support for this three children, paid collegiate education for two of them, and continues to pay his former wife $24,000 per year as alimony. Although he had good income, he had few assets. Since I did not work outside the home due to my health, I was forced to liquidate the vast majority of my premarital assets to provide for myself and my husband, mainly because of the tremendous outgo of his money to his children and former wife. From my separate funds, I made the down payment on our home, paid the majority of the mortgage payments when he couldn't, purchased all of the automobiles, and bought most of the clothing for him and me. He made very little contribution to my upkeep.
When he began seeing another woman, we tried marriage counseling, but he finally left me. I filed for divorce because I had few assets left, no income, and I am in declining health. He has retired and is making a claim for an equitable division of the assets acquired during the marriage, including the house, which is the biggest asset. My lawyer tells me that there is a very good chance that he will get a part of the equity. I don't understand how this can happen when very little of his money went toward our marriage.
Answer: Depending on the law of the state in which you live, the way courts look at these issues may vary; however, generally speaking, when marital and separate properties are commingled and used to purchase newly-acquired property and the identity of the contributing properties is lost, the commingled property will be considered to have been transmuted into marital property -- unless the property which is contributed can be traced back to a non-marital asset. In order to accomplish the tracing, you must be able to prove that the house which you claim to be separate was derived from your separate assets.
The tracing process can become even more complex where marital and separate property are combined to purchase property because you then must use "multiple destination tracing." Without sufficient evidence that establishes the identity of separate funds throughout the multiple investments, the asset in question will probably be deemed marital and therefore divisible at divorce.
However, we believe that your husband's use of the funds he earned during the marriage to pay his separate debts -- that is the courtordered payments to his former spouse and his children by a prior marriage -- should be considered by the Court in reducing what share, if any, he may have in your home. This is called "negative contributions" which does not reach the level of economic waste – such as gambling.
When marital funds -- your husband's earnings -- are used to pay his separate debts, the court may properly consider that fact as a negative monetary contribution to the marital property. Some courts have ruled that support obligations due to a former spouse and children by a prior marriage are separate debts.
Assuming you have access to all of your financial records, we suggest that you hire a certified public accountant who can help you begin the tracing process. We also suggest that your lawyer research the "negative contribution" theory as may apply to your case.
SoloFact: Joint custody, sometimes called shared custody, is presumed in some states and optional in others. Joint custody is made up of two elements: (1) joint legal custody, which means that both parents share in such major decisions as education and health care, and (2) joint physical custody, which means a time-sharing arrangement by which both parents spend substantial, although not necessarily equal, amounts of time with the children. In considering whether to award joint custody, the courts generally look at how parents cooperate, because without a continuing good relationship between the parents, shared custody won't work. Other factors include how close the parents live and the physical accommodations, because the children will be moving frequently between the parents' homes.
Jan Collins Stucker is an award-winning writer and editor. Jan Warner is a matrimonial, tax, and elder law attorney. Both are based in Columbia, South Carolina.
Please send your questions by e-mail to janwarner@flyingsolo.com or by mail to P.O.Box 11704, Columbia, S.C. 29211. Sorry, but due to volume, answers can only be provided in the column.
