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Division of Property Laws

On a daily basis, couples are unconcerned about what belongs to one partner or the other. However, when there is a death or separation, the issue of division of property arises. In the United States of America, most states recognize the community property system where property acquired during marriage — with the exception of gifts and inheritances — is considered to be jointly owned by the spouses. In this system, division of property may take place by splitting each item, or by value. Couples seeking division of property in non-community property states receive equitable distribution. Legal experts answer some of the top questions on the laws related to division of property.

As part of the preliminary agreement on the division of property during our divorce, I received our Hawaii condo and my spouse got the Idaho property. A total of $5000 per month is needed to pay the mortgages on both properties, which are in my name even though the titles include both of us. My spouse is refusing to pay the mortgage and wants to give up her property without signing any quit deed claim. I also have arrears mounting to $10,000 and my spouse’s credit card debt to clear. I am struggling financially and want to know what my options are.

Your option would be to go through with the divorce and get your share of the property. Post this, you may file for solo bankruptcy, Chapter 13, and seek to discharge any outstanding credit since your mortgage will be foreclosed anyway. If you live in Hawaii, you may file for bankruptcy there and claim your Hawaii condo as your Homestead. Filing for bankruptcy may ensure that you get to keep your Hawaii condo and you may also be able to close any other credit debts you may have. However, if the Idaho house sells for less than what you owe on the loan, the lender may lien the condo till the remaining debt is paid.

My siblings and I have inherited our father’s condo, which one of my siblings has been renting out without the consent of the others. This sibling has now filed for partition. What are our options without having to sell the house?

In this case, the property may be divided or partitioned by separating and ending common interest in the property. This means that the co-tenants would have individual and exclusive rights of possession of the property instead of common possession. During the course of the partition action, the court may issue temporary restraining orders and injunctions on the property to ensure that there is no unlawful interference.

The court may also order a sale of the property as per terms agreed by the tenants or as it may deem proper. However, the court will not force the sale if one of the co-tenants has the money to buy out the other tenant who wants the money. More clearly, the heirs will have the first right to buy the property. In your case, you may also claim your share of the income generated by renting the property.

I inherited a property in North Carolina along with two other family members. I have been paying the property tax on this land, while the others have refused to do so for two years. Does this mean that they have forfeited their rights to the property? Also, they are refusing to sell or to be bought out. What are my legal options?

You may file a suit against the other owners for non-payments to be reimbursed. You also may file a cause for "partition action", which typically involves the division of physical assets like farm land or a house. If all owners do not mutually agree to the division of the property, the court may order a partition, which may not work out according to the expectations of each owner. The right to partition is usually favored by the courts as it is an “absolute right” that can be used even if it is not referenced in a contract. This right is restricted only by law, a provision in the will or a written waiver.

If you buy the property from the other owners or it is sold to a third party, the court would factor in the taxes, maintenance and other expenses you have incurred in the upkeep of the property before the monies are distributed to the other owners.

I understand that property acquired before marriage is not subject to division of property during a divorce. However, since all the cash that I had before our marriage has been spent post marriage, can that be claimed as "negative number" on other settlements?

You are right in stating that anything owned before marriage will be considered as separate property and not divided as part of the community. However, if all separate cash has been spent during the marriage, the court will consider it as comingled with community property and, therefore, unrecoverable. You may not be able to claim this money.

Cases related to division of property are complex by nature. Some of the most common—also complicated—disputes are related to family residence purchased during the marriage, where both spouses may have contributed to the financing of the property. A case where the mortgage has not been paid off poses the question as to how the liability is to be divided. For further questions on laws related to division of property, write to Legal Experts.

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Tina
Tina, Lawyer
Category: General
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Experience:  JD, BBA Over 25 years legal and business experience.
4460311
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Recent Division of Property Questions

  • My counsel is suggesting a private mediator to play the role

    My counsel is suggesting a private mediator to play the role of settlement conference Judge, and he will have the same authority as a settlement officer. My ex-wife has contended all matters throughout this divorce, and has not cooperated. The cost of this divorce has nearly exhausted all my available resources and credit. The biggest issue on the table, division of property, seems pretty straightforward as per are last conversation. Any advice on best practices and things to consider?
  • FOR DWAYNE BIf an attorney fails to secure critical evidence

    FOR DWAYNE B
    If an attorney fails to secure critical evidence for a Trial, is it malpractice?
  • FOR DWAYNE . So I know we got hometowned and the Judge

    FOR DWAYNE B.
    So I know we got hometowned and the Judge was in on it. I may never prove that, but hopefully other errors can be proved.
    At mediation, the Special Master made a spreadsheet with values that she did not submit to the Court. At the 09-09-13 Hearing to set aside the SM recommendation, our attorney offered that spreadsheet to the Court. Our attorney told the Court we added the assets that were left off of the spreadsheet.
    Opposing counsel objected to admitting the SM's working papers and then went on a rant. That's when the below took place.
    THE COURT: Well, at some point if there is an appeal of the division of the assets and liabilities, one of the things that I’m going to have to do is put valuations on there to give some guidance for consideration of the Court of Appeals.
    OPPOSING COUNSEL: It would be presumed to continuity and all things that need to, to support the judgment on the standard view I’m familiar with.
    THE COURT: Well, yes, it’s the findings of the fact and then another request.
    OPPOSING COUNSEL: Which you could ignore and I’ll be --
    The Judge never said he would allow or disallow the spreadsheet as evidence and the Hearing then went in a different direction.
    1) Is there any opportunity for that spreadsheet to hold weight since the Judge didn't rule one way or the other on its admission as evidence and since he immediately stated on the record that the Court of Appeals would require him to provide values.
    2) In the Statement of Facts, the Judge also acknowledged our attorney presenting to the court the issues of the assets that were left out of the SM recommendation. The missing assets were never addressed by the Court in it's final ruling. It would be nice to be able to move forward with the law code of "fraud on the community," but what can we do realistically?
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