Family law encompasses many areas related to family life, from marriage and divorce, child custody and property division – an often contentious issue in divorce proceedings – to issues surrounding domestic partnerships and estate administration.
Most states use equitable distribution to divide assets fairly. With this approach, courts take several factors into consideration when allocating property between spouses; including duration and contribution to its value.
Marital Property
Step one in property division is identifying which assets and properties belong to both spouses. Separate assets include those owned before marriage by either partner; gifted by third parties such as non-spousal parents or inherited; as well as income generated from nonmarital property that remains separate from marital accounts and other assets.
Couples may also exclude certain property from consideration through a valid prenuptial or postnuptial agreement, with most courts honoring such arrangements. However, certain assets that had been considered separate before marriage can become marital through “commingling,” for instance if one spouse owned it prior to marrying but later made improvements using marital funds that increased its value significantly; some or all of this gain would likely count against both spouses in terms of marital property ownership.
Separate Property
Separate property includes any assets or debts owned before marriage, gifts given specifically to one partner from another, awards from civil lawsuits and anything listed as separate in a prenuptial agreement.
Separate property may become marital property through a process known as “commingling.” For instance, if you deposit separate funds into a joint bank account and use them throughout your marriage, they could lose their status as separate property and become subject to equitable distribution.
Equitable Division refers to how courts will divide property according to what a judge considers just. For instance, this could include awarding half of a house to each spouse depending on the circumstances in the case and will first decide whether the property belongs as community or separate property before making their rulings on property division. Creating a prenuptial agreement before you get married is the easiest way to prevent battles over assets during divorce proceedings.
Inherited Property
Typically, any money or personal items obtained as inheritance before marriage or during it are considered separate property and can’t be divided in a divorce settlement agreement. But this rule doesn’t always hold.
Even though an inheritance may initially appear separate, it can still become jointly owned through “transmutation.” For instance, you could transfer some inherited real estate into an LLC or trust for ownership as a joint asset.
Assuming you inherit land with siblings can become even more complex if some wish to sell while others remain in the family. Should disagreements arise among co-owners, court orders or partition actions may need to be pursued against one of them – to avoid this from occurring early on during administration, communicate your concerns directly to your executor or trustee immediately after being made aware of them.
Siblings
Siblings inheriting property together may find it challenging to come to an agreement about its use, particularly if the home has emotional ties to either sibling. Executors/administrators or trustees typically are allowed to make autonomous decisions regarding estate or trust property such as selling it off and dividing up its proceeds among siblings.
If a sibling does not wish to sell their property, they can offer to purchase their sibling’s ownership share either through direct negotiations between siblings or with assistance from an experienced partition action attorney.
There may be instances in which it would be in the best interests of a family to separate siblings. These generally involve antagonistic relationships such as when one sibling abuses the other or mental health issues are present. Although judges rarely order separation of siblings, estate or trust documents should be carefully examined to see if more peaceful solutions exist.