Q: My husband took all our money out of our joint bank account and put in a bank account with just his name on it?
A: The property subject to division in a dissolution consists of two categories. The first, “marital property,” consists of any property that either or both of the parties own, regardless of when the property was first acquired. The second category of property is “marital assets.” Marital assets refer to property acquired during the marriage. There is a presumption that marital assets will be divided equally, even if held in the name of one spouse alone. Since the mortgage is in your husband's name and he makes more money than you do, it is in his best interests to make sure the mortgage is paid on time. Depositing your pay check into a different account shortly before divorce proceedings are initiated will not have much, if any, of an impact on your claim to an equal share of marital assets. You should contact an attorney to determine the best course of action given the particular circumstances you are facing. You have many options, and an attorney can give you specific advise best for your circumstances.
Joanne Reisman agrees with this answer
A: I would use your next paycheck to pay for a consultation with an experienced family law lawyer and discuss what is likely to happen in a divorce. Whose name property is in won't stop the court from dividing assets. You are entitled to 1/2 of the net value of all marital property acquired during your marriage or 1/2 of the appreciation of property that either of you held prior to marriage. Also you say you were in this relationship years before you got married to that time period can be counted as well because it may qualify as a domestic partnership. The domestic partnership requires additional proof of intent to be in a partnership whereas one you are married the partnership is assumed.
There is a possibility that the court will award you some form of transitional support particularly if you lay out a plan to retrain for a higher paying job. You may not be able to get permanent support because the marriage wasn't a very long marriage but even in short marriages under the right set of facts the court sometimes awards long periods of support. Just don't count on it until you have spoken to and Attorney who tells you that your situation may justify this.
Usually the couples separate when they6 are divorce and only one of the spouses stays with the house. It might make sense for your husband to stay in the house since his name is on the loan that that's a good thing for you as you then don't have to worry about that debt. But the court will require your husband to pay you any share of the home equity that you are entitled to, so that might mean that your husband will need to refinance to pay you off or the court may order the house to be sold and the profit divided.
So, as stated at the beginning, take your paycheck and pay for legal advice. No court will fault you for doing this. No court is going to approve of your husband's current behavior either. But this is common when people get divorced so the court is not going to be shocked either. Get advice and then you will know what to do next.
A: I will just add that I haven't come across using the terms Marital Assets and Marital Property before as a way to distinguish pre-marital Assets versus post Marital Assets. I think explaining what the legal cases do in these situations is a bit easier to understand then the labels imply. I recently briefed a case, Staveland vs. Fisher , 25 OR App 210 (2018), that was about a domestic partnership where the couple never got married and the court was pretty generous about awarding property to the "have not" person in the releationship because there was a lot of evidence that they conducted themselves as married or having the intent to get married during all their financial dealings. Here is my article which summarizes this case: https://www.portlandlegalservices.com/blog/2019/06/08/PROPERTY-DIVISION-AND-UNMARRIED-COUPLES-A-CAUTIONARY-TALE.aspx In cases where there is not a period of domestic partnership I have seen the court look at pre-marital property and award appreciation to the other spouse, where the appreciation happened during the marriage. So I think there are three ways to view property in your situation. 1. Property that may have been acquired while you and your current husband were cohabitating if a domestic partnership argument can be made. 2. Property that either of you had premarriage which has since appreciated during the marriage, ostensibly due to efforts in the marriage by both spouse that helped keep property that was appreciating, and 3. Property that was bought during the marriage. Again, a consultation with an Attorney will help you figure this out and put forth the argument which best benefits you.
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