Dividing property


#1

Hello. My wife and I have decided that we will be divorced as of about a month or so ago. She tried to get me to sign a separation agreement on July 6 but I would not. She is moving out on August 1. She will not be getting alimony b/c she has cheated on me. I was/am the breadwinner and she was a homemaker. There is no separation agreement as of yet.

My question is when does a dividing of assets occur? For example, my last paycheck went into my individual account and I dried up our joint account by paying legit bills except for leaving money in their for her spending (e.g., food, gas, etc). I assume that since she still lived in the house that she gets half of the money in my newly created checking account, but if she moves out of the house, is that the point where an equal dividing of assets (e.g., monies) occurs or does it occur when the divorce is finalized in a year from August 1? I suppose that the dividing of property may also occur when a separation agreement is drawn up.

Thanks and hope this makes sense!


#2

I’m sure Erin will respond but my 2 cents:

Assets should be divided based on date of separation (whichever date that might be). In other words, only the assets BEFORE the date of separation are subject to division assuming they are marital in nature.

WHEN they are actually divided can depend on whenever the attorneys get around to working that out (if you have attorneys).

If your divorce is amicable (meaning both of you are willing to work together) things-- asset division, child support-- will move a long a lot quicker. If you both get attorneys and dig your heels in it can take over a year.


#3

To piggyback on this question, my wife and I have signed a separation agreement that stipulates all bank accounts will be split 50/50 at the date of separation and neither party can thereafter make claim to any personal property in the name, possession, or control of the other. Similar to justlikemymother, I have my paycheck going into an individual bank account, and will receive this monthly paycheck about a week after the date of separation that is on the signed & notarized agreement. She will be physically moving out of the house on the separation date. My wife is saying that since the paycheck I’ll be getting is income for work that I did while we were still living together, she is technically entitled to 50% of it, and I told her I disagreed. Previous to this, I had been transferring paychecks from my individual account to our now-divided joint account, under advice I’d been given that my income is technically a marital asset (though I had not been paying off joint bills and then splitting the remainder between us, which I’d been advised to do since my wife did not work for several months prior to moving). So my question is, given that there’s an agreed-upon separation date, and also that she will be moved to another state at the time my paycheck is deposited by my employer, does when I get paid matter, or does when I did the work matter?

I would’ve started a new thread, but I figured my question more or less logically follows from the original poster and might help him out when it comes to separating and dividing property.


#4

Though I’m not 100% sure, I think it’s ‘when you did the work’ that matters. I know bonuses that are given AFTER the date of separation are subject to division if the bonus was for work done DURING the marriage (ie. before separation).


#5

I thought that since the separation agreement says that we can’t make claims against property in the name, possession, or control of the other party, and I won’t actually have possession or control of the paycheck until after the separation date (and it’s not going to a joint bank account), it isn’t necessarily subject to division. If it is, does the whole thing get divided? Or should I pay the mortgage first (the home loan is in both of our names) and divide what’s left? I’d also agreed to cover her car payment for a few months and pay for her COBRA until her new job starts after she moves to help her get back on her feet, so I’m wondering how I’m supposed to pay for all these things with half a check that won’t be enough to cover all of it (and barely anything left from the savings we split).
I’m just wanting to do what’s right here, but I also don’t want to make a concession that I don’t have to since I have my own financial well-being to take care of.

Thanks!


#6

Assets are divided as of the date of separation.The funds were earned before separation and would therefore be classified as martial property. After she moves out any funds you earn and deposit are separate property, ie the next paycheck. However, if the agreement states that the accounts will be divided on the date of separation, they will be divided as of that date without accounting for the check earned before the date of separation.


#7

Since my wife is planning on moving out the 6th of August, if we do not have a separation agreement in place by then, does she forfeit her right to anything she leaves behind in the house? She is planning on taking everything that is hers anyways, but I just want to make sure that she does not have a legal claim to anything she leaves behind. Thank you!


#8

No, the personal property is part of the marital estate and subject to equitable distribution. Her leaving the house does not cause her to lose rights to the home, or its contents.


#9

Oh, so I can’t change the locks when she leaves?


#10

Once she leaves you will have the right to exclusive possession of the home and may change the locks. She may not return to the home without your permission, but this does not mean she has lost her interest in the home or its contents.