Recent Divorce Research Articles:
The following is a collection of recent divorce research articles. Each of these articles address a very specific subject matter and provide many references to other divorce resources and past case ruling for research purposes.
Active Appreciation of Marital Property in Divorce
Equitable distribution theory provides that all value created during the marriage by the active efforts of one or both spouses constitutes marital property. This rule is easily applied when the active efforts are used to acquire an entirely new asset.
Joint Interspousal Gifts and the Parol Evidence Rules
Under most equitable distribution statutes, property acquired by gift is separate property. Upon close examination, however, this basic rule has a number of important exceptions. Interspousal gifts, for example, are treated as marital property in a significant number of jurisdictions.
Equitable Distribution and Irrevocable Trusts: The Material Purpose Doctrine
As a general rule, the law of equitable distribution applies only to property which is owned by one or both spouses. Regardless of whether a particular state recognizes the concept of separate or nonmarital property, assets which are owned by a third party cannot be divided upon divorce.
Marital Home and Divorce - An Update
A series of recent cases provides a useful review of current case law on the division of the marital home. Automatic Transmutation. To begin with, it is important to understand that the marital home is not always and automatically marital property.
Dividing Attorney Contingent Fees in Divorce
A recent Minnesota decision provides a good entry point for reviewing the law on the division of contingent fees received by an attorney-spouse after the marriage, based in part upon work performed during the marriage.
Goodwill and Spousal Support
The courts power to divide assets upon divorce applies only to interests which constitute property. An interest which does not constitute property to begin with cannot be classified as marital property, and it cannot be divided upon divorce. f
Equitable Distribution and Divorce and the Clean Hands Doctrine
When dividing property, should the court consider the fact that one or both spouses has committed misconduct against a third person? The relevant decisions reach disparate results. A good entry point into the discussion is the recent New York case of Bernstein v. Bernstein, 18 A.D.3d 683, 795 N.Y.S.2d 733 (2005).
Classification of Livestock Upon Divorce
Livestock are governed by the same rules of classification as other assets. In general, the courts task is to determine the extent to which the real economic value of the livestock was acquired during the marriage as a result of marital contributions.
Commingling and the Separate Property Presumption Upon Divorce
A recent Illinois opinion reached a split result on an interesting issue involving commingled marital and separate property. The dissent is most consistent with the plain language of the Illinois statute, but the majority opinion is most consistent with good policy, and with the general rule in other states.
Divorce Valuation Update - Minority Discounts
One of the most common points of dispute in valuing a small family business is the appropriateness of a minority discount. A minority discount is a percent reduction in the value of an interest that comprises only a minority of the corporation's stock.
Income Tax and Divorce - Carry-Forwards
One of the great challenges in litigating property division cases is identifying all of the assets which a court might potentially treat as marital property. In addition to the mostly factual challenge of finding hidden assets, counsel must also face the mostly legal challenge of identifying marital assets which are hiding in plain sight.
Personal Goodwill in Divorce
A significant majority of American jurisdictions hold that the personal goodwill of a business cannot be classified as marital property. Personal goodwill is the individual, nontransferable reputation of a specific owner. It is generally distinguished from enterprise goodwill the corporate, transferable reputation of the business itself which is marital property to the extent it was created during the marriage. This article discusses several recent cases applying the distinction in different fact settings.
Property Division, Alimony, and Security After Death
An Illinois case decided almost a year ago posed an interesting dilemma involving the relationship between property division and alimony. The holding may ultimately have been correct, but the court failed to discuss several ways to reach the same result in a much fairer manner.
Unintentional Conduct as Dissipation of Marital Property in Divorce
As a general rule, the courts can divide only property which exists at the time of divorce. An exception to this rule applies, however, when one spouse wrongfully dissipates an asset in anticipation of a coming divorce. In this situation, the court can clearly consider the dissipation as a factor in dividing the other marital assets.
Jointly Titled Partnership Interests: Marital Property?
A recent Kentucky Supreme Court decision addresses the proper principles for classifying a jointly titled partnership interest acquired by gift from one spouse's parents. In addition to addressing joint title, the opinion also addresses several interesting issues of tracing.
Classification of Drop Benefits in Divorce
Most employees who own defined benefit retirement plans elect to have the benefits paid directly to themselves, beginning on their chosen date of retirement. A number of plans, however, give the employee the option to defer the receipt of benefits for a period of time after benefits are first elected.
Active Appreciation in Divorce: Marketing, Promotional, and Lobbying Activity
As most practitioners know, increases in the value of separate property do not always necessarily remain separate. Increases which are caused by marital contributions are known generally as active appreciation, and they constitute marital property.
Separate Property and Joint Titling in Divorce: A Tale of Two Cases
One court reached a result well within the nationwide mainstream; the other court adopted without statutory authority a radical rule of law not followed in any other state. The contrast between the two cases illuminates the key factors which drive decisions regarding the division of jointly titled property traceable to a separate source.
Spouses in Divorce Who Serve as Both Breadwinner and Homemaker
Equitable distribution is built upon the assumption that spouses make different but essentially equal contributions to the marriage. In particular, when a breadwinner husband works full-time earning income for the family, and a less-employed homemaker wife works equally hard taking care of the children and the home, an equal division of the marital estate is normally equitable.
Interests in Trusts as Marital Property in Divorce
One of the most important and flexible devices used to make conditional transfers between persons, particularly in the testamentary context, is the equitable trust. Because trusts are used for such a variety of different purposes, they pose unique challenges for courts classifying and dividing property upon divorce. When trusts are used for the same general purpose as a gifts or inheritances, they tend to be given similar treatment.
Country Club Memberships as Divisible Property in Divorce
In determining whether an interest constitutes marital property, the court must first determine whether that interest meets the legal definition of property. Interests which do not constitute property, such as educational degrees and future inheritances, cannot be divided upon divorce.
Contractual Conveyances Upon Divorce
One of the most difficult areas of equitable distribution law is the effect of interspousal transactions upon the classification of property. Under the proper circumstances, an express or implied agreement or contract can change the classification of assets completely, converting separate property into marital property or even marital property into separate property.
Dissipation of Marital Assets Upon Divorce (Update)
One of the many perennial battlegrounds in the law of equitable distribution is the struggle against dissipation of marital assets. A small minority of spouses are determined to maximize their share of the marital estate through creative but dishonest means, and providing an appropriate remedy in these cases is a necessary but ongoing task.