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Questions relating to the Division of Property by Meghan Jones
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Questions relating to the Division of Property |
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Law
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When a couple separates, the issue of dividing the property they own can be a complex one. Most states in the U.S. use the concept of Community Property to cover most of the assets created or acquired during a marriage. Property is divided by either physically splitting it or by dividing the value. States that do not use Community Property have their individual systems for protecting spousal interest during separation / divorce. As part of a preliminary agreement for property division at the time of divorce each spouse received one house (in different states). The properties are in one spouses name and $5,000 per month is needed to pay off both mortgages. The other spouse is refusing to pay his/her share of the mortgage and wants to give up the property without signing a quit deed claim. The first spouse has debts mounting to $10,000 and the other spouse’s credit card debts to clear. What options are available to this spouse to reduce the financial burden? One option would be to proceed with the divorce and for the spouse to get his/her share of the property. Once the decree is granted a filing for solo bankruptcy under Chapter 13 may be done to seek discharge of any outstanding credit as the mortgages will anyway be foreclosed. The spouse can claim the home in the state where he/she lives as his/her homestead which will allow him/her to keep that property and also possibly close other debts that may exist. However, if the property in the other state sells for less than what is owed on the loan, then a lien on the homestead property may be placed by the lender. Siblings inherited a parent’s condo which one sibling has been renting out without the consent of the others. That sibling has now filed for partition of the property. What options area available to the other siblings? The common interest in the property may be ended by dividing or partitioning the property. This means that the instead of common possession, the co-tenants will have exclusive and individual rights of the property. While the partition is being done the court could issue temporary injunctions on the property so that no unlawful interference takes place. It could also happen that the court orders the sale of the property either on terms agreed to by the tenant or as the court sees proper. In case one of the co-tenants has the money to buy out the other tenants the court will not force the sale. In other words, the heirs will have the first right to buy the property. The other siblings may also claim a share of the rental income that is being generated. A person inherited a property along with 2 other family members. This person has been paying property tax for 2 years while the others refuse to do so. By doing this have they forfeited their right to the property? They are also refusing to sell or be bought out. What options are available to the person who has been paying the tax? A suit can be field against the other owners for the amount of the non-payments to be reimbursed. A case for Partition Action which normally involves the division of physical assets can also be filed. If the owners cannot agree on the division of the property, the court could order a partition which may not satisfy the individual owners in terms of compensation received. In general, the right to partition is favored by the courts because it is what is known as an “absolute right’ that can be applied even if it is not present in a contract. Only provision of the law, a will or a written waiver may restrict this right. In case the person paying the taxes buys out the other owners or the property is sold to a third party, the court would take into account the taxes, maintenance costs and other expenses that have been incurred before distributing money among the sellers. Can property acquired prior to a marriage be subject to division of property during divorce proceedings? All the cash that the spouse had before the marriage has been spent during the marriage. Can this be claimed as a “negative number” on other settlements? Any property owned prior to the marriage is treated as separate property and not divided among the spouses. If all separate cash has been spent during the period of the marriage the court will take it as being comingled with community property and as such to be unrecoverable. The division of property can be a contentious issue, especially when both spouses have contributed to the purchase. Where the property is not fully paid for issues of the division of the liabilities may arise. When faced with the complexities of property division, it will be advisable to ask a real estate lawyer for help and advice.
Related Articles -
division of property, property division, property division in divorce, unclaimed property division, distributive property division, division of marita,
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