His or hers? Untangling separate assets from marital assets.

AuthorSmoak, Emily B.
PositionLegal Brief

I felt like Harrison Ford, bullish and courageous, when 1 was victorious in my somewhat novel and imaginative argument. Turns out, I was merely riding the wave on the cutting edge of a legal issue that I had not created nor could 1 take credit for.

The cutting edge had to do with how much premarital money can be untangled from a retirement or investment account that has been funded, in part, by monies earned during a marriage.

My client saved funds in retirement accounts to last her entire lifetime. After she married later in life, she continued investing more funds into her accounts. With her divorce, the courts would typically determine the value of the account at the time of marriage and subtract that amount from the balance of the account at the time of divorce-So, if a retirement account was worth $50,000 at the time of marriage, and the account was valued at $100,000 at the time of divorce, generally the court would set aside $50,000 as non-marital money, and the balance of the account, $50,000, would be divided between the two spouses as a marital asset.

But what about my client's earnings on her non-marital investments generated, through stock splits and market gains, during the marriage? She did not want to fork over 50 percent of those earnings to her divorcing spouse. Through a detailed argument, I asked the court to untangle all of my client's premarital money, including all of its earnings, and set them aside entirely for my client. This would leave a much smaller sum invested during the marriage to be divided between my client and her spouse.

Legal authority for this theory wassparse, but it had trickled down from Appellate Courts in 1982, 1990 and in 2006. But, it had not come down clearly enough to stop the courts, in general, from using a blunt sword to divide retirement accounts and largely ignore earnings on premarital assets. Judges rely, at least in part, on the lawyers to tell them the law, the nuances, the trends, the support and proof of the theories. But, I'm pretty sure that judges have their own way of knowing things as well.

[ILLUSTRATION OMITTED]

In the end victory was mine, but I soon learned that I could not...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT