Property distribution with pre-nup


#1

Let me explain my situation and hopefully you can give me some insight as to what I’m entitled to.

I received a pretty large sum of life insurance money from my late husband. I had a prenup going into my 2nd marriage. In my pre-nup it states that any separate property remains separate.

I owed 12 acres (which was on the prenup) prior to my husband and I building a house on it. My husband and I are now going through a divorce. Should I be entitled to the value of the property – should that not be deducted from his half? And what value would you use – the value of the property PRIOR to the house being built on it ($40k) or the current value ($90)? Also I paid over $30k of my inheritance money (separate property) towards the building of the house. Would the $30k also be deducted?

The house was recently appraised for $300k and we owe $225k…this would leave $75k in equity ($37,500 each). If the property value ($40k) and the $30k I invested into the building of the house is deducted off his half, then that leaves a major deficit on his part. Would he have to reimburse me for the difference? Or would I just take the loss and he’d not be eligible for anything from the house??

Thanks for any help you can provide on this complicated situation!


#2

The land should remain separate, however the structure on the land is martial, and therefore the increased value in lends to the land is martial in nature and subject to division. In other words, the increase in value of the land is martial and each of your are entitled to 25k from that increase. The value of the home is also martial, and the equity should be split. Your investment of separate money into the home could be considered a gift to the marriage, however since the money is traceable you have a good argument to keep that 30k out of the martial pot.


#3

Erin,
Thank you for your prompt reply. Let me make sure I understand this correctly.

IF there was no prenup and no consideration of the land, we would split the $75,000 in equity equally ($37,500 each).

I am wanting to keep the house and buy my ex’s part out (if there is any money to buy out).

I’m just a bit confused about how much equity each of us would have.

I guess my bottom line question is…how much would MY equity be…versus HIS (not considering the $$ I invested – but just counting the land value)?

Also if he ends up in a deficit (I have more equity than he has), would he owe me the difference?

Thanks for any clarification you can give me.


#4

Dear Erin,

I have a question about your response. I thought that if separate property was used to purchase real estate (marital residence) than that property became marital – in other words, regardless of title if separate property is used to purchase somthing during the marriage it remains separate. However, in the case of real property, separate property used to purchase real property results in marital property. Is this correct?

Secondly, is the reason that she has a good argument that the 30k should remain separate based on her prenuptual agreement? If she did not have a prenuptual agreement, would the propery be martial and thus her husband entitled to have becuase it was a real property purchase?

Thank you for your time.


#5

The prenup really doesn’t apply to the increased improvement value of the land, as the improvement on the property is what increased the value, and the improvement occurred during the marriage with funds that are partially separate and partially marital.

Your equity is one half the martial portion, the martial portion is what is in question. Depending on what you and your spouse agree to with respect to your 30k investment.

To legalquestion70-

If separate property is used to purchase the martial residence during the marriage, and the home is deeded to both parties the property is martial in nature. If a spouse titles a piece of property purchased during the marriage in both names, it is presumed that the property has been gifted to the marriage.

The reason she has a good argument regarding the 30k is because of the wording of the prenup and the traceability of the funds.


#6

Erin,
Just found out that when we refinanced our home (June 2009), unbeknownst to me (or my ex), I added my ex’s name to the deed of my 12 acres (which is on my prenup). We separated 4-6 weeks after signing the deed. The bank required that his name be added to the deed in order for us to qualify for a refinance. Neither of us knew what we were signing.

Now the question is…will this be looked upon as a GIFT to the marriage?? My ex admitted in court that he didnt’ know he signed the deed. I have a statement from the bank stating that his name had to be added in order to get the refinance.

What are my chances of fighting this in court? I also have witnesses to where my ex has told them that he did not want the 12 acres and he knew he was not entitled to it (due to my prenup).

Have I royally screwed up by signing this deed? I stand to lose a good bit of money if this will be considered a “gift” to the marriage. And will the date have any bearing on my case (signed it only 4-6 weeks prior to our separation).

Thanks for any info you can provide.


#7

Having his name on the deed creates a presumption that the transfer was a gift to the marriage, it does not make it absolute. Based on the facts and your husband’s admission I think you have a good argument regarding the separate nature of this property.