By Sherri Donovan
Reprinted with author’s permission
Marriage is often thought of as an economic partnership where spouses are considered equal owners of all property acquired during a marriage. Accordingly, it may seem logical to simply divide all marital property 50-50 upon a couple’s divorce. Yet you may still be entitled to a greater share of marital property under certain circumstances:
1. Wasteful Dissipation.
Your spouse may have addiction issues, such as drug or alcohol abuse or gambling, and has squandered income and assets as a result. Your spouse may have made unreasonably risky, negligent or even illegal decisions in connection with his or her business, personal finances or investments, resulting in debts, liens and liabilities. Your spouse may have spent significant amounts of marital funds wining and dining or even supporting a paramour during your marriage. Your spouse may have dissipated regular income or even drawn from precious college or retirement savings accounts in order to support his or her frivolous spending. Any of these destructive wastes of marital assets may mean that you are entitled to a greater share of what remains.
2. Accumulation of Unnecessary Debt.
Your spouse’s wasteful spending and poor decision-making may have led you to take a second mortgage on your home, or to accumulate high interest credit card debt, liabilities, legal fees and fines. Your credit rating may have been ruined as a result of your spouse’s actions. You may be entitled to credits in the form of an increased share of marital property in order to offset the debts incurred by your spouse.
3. Inappropriate Transfer or Failure to Disclose Assets.
Your spouse may have secretly transferred funds to accounts of which you have no knowledge or access. Your spouse may have sold marital assets to third parties for less than fair market value. Your spouse may otherwise seek to hide and shield marital assets from you in order to horde them. All assets must be fully disclosed during your divorce proceeding. If you suspect or discover that your spouse has made efforts to transfer or hide marital assets, bring this to the court’s attention to maximize your chances of restoring what is rightfully yours.
4. Relative Financial Outlooks.
You may have stayed home throughout the marriage in order to raise children and care for the household. You may be of an age or in such poor health that entering the workforce and becoming self-supporting is simply not a viable option. A realistic comparison of each spouse’s post-divorce financial outlook is essential and may not only affect your share of marital assets, but what types of assets you receive.
5. Spousal Maintenance or Alimony Award.
The amount and duration of any spousal maintenance or alimony award that a spouse receives may alter the share of and distribution of marital assets, both in terms of amount and type of asset. For example, monthly maintenance income may decrease your need for liquid and/or income-producing assets.
6. Primary Responsibility for Children.
You may be the primary caretaker of the children and the more financially responsible party. If one spouse carries the bulk of both childrearing and financial responsibilities, it may be fair to grant this party a greater share of marital assets so as to benefit the children.
7. Special Needs Children.
If you are a parent with primary responsibility for a special needs child, you may be entitled to a greater share of marital assets. Your earnings capacity and potential to save for retirement may be negatively impacted by your responsibilities. This is especially true if you will need to continue caring for your child after he or she reaches the age of majority and legal rights to child support cease.
8. Length of Marriage.
Generally, the shorter the marriage, the more likely a court will seek to return spouses to the financial positions they would have been in had the marriage not taken place, which may result in a more unequal division of property.
While marriage is in every sense a partnership, the division of marital assets upon divorce is determined on a case by case basis. Be sure to consider the totality of your specific circumstances in your efforts to achieve a truly fair and equitable result.
Sherri Donovan ESQ