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Division of Assets in Divorce / Division of Property in Divorce

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The three exceptions of the division of third-party property or assets in divorce cases.

There are three major exceptions to the rule against the division of third-party property. The first exception allows the court to divide such property or assets if one or both spouses own an equitable interest in it, even if legal title remains with the third party. In other words, if the shares of the third party legal entity are owned by either spouse, the shares can be considered part of the marital estate and divided. E.g., Upchurch v. Upchurch, 122 N.C. App. 172, 468 S.E.2d 61 (1996).
The second exception allows the court to divide the property or assets that was formally owned by the parties, and an improper or fraudulent conveyance of assets occurred. (i.e. there was no consideration given for the assets transferred.) The most common case is when the court rescinds an improper transaction made for the purpose of depriving the spouse of marital property rights without proper market value consideration for the assets in question. E.g., Firmani v. Firmani, 332 N.J. Super. 118, 752 A.2d 854 (App. Div. 2000); Buchanan v. Buchanan, 266 Va. 207, 585 S.E.2d 533 (2003).
The third major exception allows the court to divide the value of the asset or property if it was dissipated by one spouse in anticipation of divorce, even if the conveyance itself remains valid unless the asset paid in consideration for the transferred asset is transferable to the spouse. E.g., Breitenstine v. Breitenstine, 62 P.3d 587, 592-93 (Wyo. 2003). Continue reading: Parallel Irrevocable Trusts in Marriage & Divorce
Rocco Beatrice, CPA, MST, MBA, Managing Director, Estate Street Partners, LLC.
Mr. Beatrice is an asset protection award winning trust and estate planning expert.
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