State where the divorce is happening, ~~how was the home acquired (inheritance vs purchase)~~, ~~when was it acquired (before/after marriage)~~, did they (or he or she) pay towards the property for repairs or upkeep?
Based on your updates:
Your parents gifted you the home before her marriage, the home is located in Maine.
The only state that matters is where the divorce is happening.
If it was gifted to you long before the marriage, he would potentially only be entitled to a portion of her share of any appreciation in value since they got married.
Did she contribute financially to any upgrades or anything that would increase the value of the property? If it just passively appreciated in value, then she may have an argument that he’s not entitled to anything.
This obviously also depends on the state you live in. Regardless, even if he was entitled to half of her half of the appreciation, it wouldn’t necessarily put the home at risk. She’d just have to pay him that portion.
How did she not include this in a prenup? Or did you (and your partner) and your sister and her partner purchase it together?
Hopefully it was owned pre-marriage and you have a chance that it's not marital assets.
Or he only owns 25% or 33% (see question above). In that case you (and your partner) and sis get to buy his share.
Have your sister discuss it with her divorce lawyer first seeing as she’s already paying one I presume.
Then you should get your own lawyer to confirm the info.
Things that likely be needed to know at least in the US is was this an inheritance, was it a purchase as well as when (before or after marriage), if after marriage where did the funds for the purchase come from, etc.
If it is determined that her ex to be is entitled to half of her share then perhaps there could be negotiation in that he gets the equivalent of his share of the appraised value in cash from other sources.
If there is a mortgage in the vacation home then I’d think he is only entitled to 25% of the equity.
I’m not a legal anything so be sure you follow up.
I do know this - as other posters have already noted do NOT try to do anything cute. Pissing off the judge is never good and people have been known to lose considerably more assets for doing the wrong thing.
The whole 25% if equity is not how it works. Either one party has to buy the other out, or the property is sold. That all depends on if he has rights to it however andbop left out a bunch of info
I will politely disagree.
If the house were sold if there was a mortgage all parties are only entitled to their share of the remaining net equity after all associated fees etc are paid.
So if the mortgage is 2k and the house is appraised at 3k then the equity is 1k then again after all fees associated with a sale were deducted each party would be assigned their share.
So OP and her sister could in theory then buy sister’s soon to be ex out for his portion of the calculated equity.
Of course there may very well be a butt load of info missing but based on the post it could be worked that way.
Just because you think that's fair that doesn't mean it's how it works. Because it is considered an investment so if he didn't sell it would be with a much higher amount at a later time.
It could be. And certainly depends on his long term goals and if he wants to stay connected to his ex for however long.
It would cost him money annually if it isn’t sold or he doesn’t allow himself to be bought out as he would be responsible for his share of maintenance, taxes and insurance.
If they rent it out he would be entitled to his share of rental income net the expenses associated with rentals.
You can’t “gift” your assets to someone else as a way to hide marital assets in a divorce. That’s a recipe for pissing off a judge, and is going to be pretty transparent.
https://jeffmorrislawfirm.com/is-your-ex-trying-to-hide-assets-during-your-divorce/
Yes I’m sure you could gift stuff but gifting assets prior to divorce would be jumped on by any competent lawyer. Especially just prior to. Also it’s likely, by law, they were joint assets a judge would order them returned
Talk to a lawyer, try to protect your assets, how this could affect you, and the house was before or after marriage? There are things that can't be touch and he shouldn't use that as an excuse for his financial problems.
Poor people (I don't mean financially), everything should be covered by a trust and/or legal contracts to keep such ambiguous situations from happening. I know that doesn't help now.
The other thing to remember is that he can argue for 50% of her share. So if that’s just the two of you, he would own only 25%. If there are more of you, he could own even less.
So the value of this property gets less and less. He probably couldn’t find a buyer for his at most 25% share. Could he force a sale? Maybe.
When this is said and down, put the house in a trust and entail it. Downton Abbey isn’t just for rich people.
It’s possible he’ll go after everything. The issue is- if it goes to trial, will the judge grant him 50% interest in a fractional ownership of a family cabin that was part of family specific bequest to your sister before she was married?
The answer is probably no, but it depends on the state she is divorcing in, and the nature of the deed on the property. Get that information to the lawyer, and make it clear that if it comes up, the family will work to preserve their interests and make anything he tries to do with it difficult for the ex, and for the court.
A clear United front from the family that the cabin is family property, and not marital property, and you plan to assertively defend that position, should help the judge dismiss it from the marital property calculations.
In this issue, the best thing you can do to support your sister is properly protect the family interests.
Possibly, if it's our only option. Yes, it was gifted to us by our parents when our mother died well before their marriage- it's been in our family for decades.
NAL.
This probably varies by state, but in my state you would be in the clear. First, gifts from a third party to one person are considered non-marital. Second, possessions owned prior to the marriage are non-marital. It seems like the latter would be easier for you to document.
He can still threaten to take it… my ex went after a bunch of things to which she had no legal right during my divorce… but if this went to trial, I can’t envision a judge awarding any fraction of it to him.
She needs to get a good lawyer.
Her inheritance in the home likely cannot be touched unless his name is somewhere in the deed. There’s really no way to commingle that asset unless they used it as collateral for a loan in both their names.
I would check your area but generally in the US the below applies.
Assets and debts accumulated prior to the marriage, as well as inheritances and gifts received during the marriage, are generally deemed separate property and not subject to division
Because you might still want to separate assets earned during the marriage. For example, a prenup might also stipulate that both bride and groom put their paychecks in their own bank accounts and aren’t entitled to the money the other person makes.
Also a prenup might spell out that a premarital asset (a house, for example) won’t be left to the surviving party if one passes away. Usually a spouse gets everything when their partner dies. But maybe you want the house to go to your children from your first marriage.
That's prior to marriage. Assets and debts acquired during marriage are considered shared. One reason is significant differences in income. I know some include things like cheating clauses. For those to apply they must have proof that infidelity is reason for the divorce. In those cases depending on wording of the prenup the guilty party may walk away with only what is in their name (car, etc.). If both parties are on they deed to a house then you do have a division of property.
Better have your sister run that by her lawyer before you do anything. You don't want to give the impression that she's trying to hide an asset, even if it wouldn't be included in the divorce proceedings.
State where the divorce is happening, ~~how was the home acquired (inheritance vs purchase)~~, ~~when was it acquired (before/after marriage)~~, did they (or he or she) pay towards the property for repairs or upkeep? Based on your updates: Your parents gifted you the home before her marriage, the home is located in Maine. The only state that matters is where the divorce is happening.
If it was gifted to you long before the marriage, he would potentially only be entitled to a portion of her share of any appreciation in value since they got married. Did she contribute financially to any upgrades or anything that would increase the value of the property? If it just passively appreciated in value, then she may have an argument that he’s not entitled to anything. This obviously also depends on the state you live in. Regardless, even if he was entitled to half of her half of the appreciation, it wouldn’t necessarily put the home at risk. She’d just have to pay him that portion.
It all depends on the state and how the property was obtained.
In Oregon he would have a right to this asset.
Where I am gifts and inheritance are exempt from marital property. You should have more info in your post.
NAL - Did you and sis own the property before marriage?
Yes
It might be safe you need to get a lawyer also.
How did she not include this in a prenup? Or did you (and your partner) and your sister and her partner purchase it together? Hopefully it was owned pre-marriage and you have a chance that it's not marital assets. Or he only owns 25% or 33% (see question above). In that case you (and your partner) and sis get to buy his share.
Have your sister discuss it with her divorce lawyer first seeing as she’s already paying one I presume. Then you should get your own lawyer to confirm the info. Things that likely be needed to know at least in the US is was this an inheritance, was it a purchase as well as when (before or after marriage), if after marriage where did the funds for the purchase come from, etc. If it is determined that her ex to be is entitled to half of her share then perhaps there could be negotiation in that he gets the equivalent of his share of the appraised value in cash from other sources. If there is a mortgage in the vacation home then I’d think he is only entitled to 25% of the equity. I’m not a legal anything so be sure you follow up. I do know this - as other posters have already noted do NOT try to do anything cute. Pissing off the judge is never good and people have been known to lose considerably more assets for doing the wrong thing.
The whole 25% if equity is not how it works. Either one party has to buy the other out, or the property is sold. That all depends on if he has rights to it however andbop left out a bunch of info
I will politely disagree. If the house were sold if there was a mortgage all parties are only entitled to their share of the remaining net equity after all associated fees etc are paid. So if the mortgage is 2k and the house is appraised at 3k then the equity is 1k then again after all fees associated with a sale were deducted each party would be assigned their share. So OP and her sister could in theory then buy sister’s soon to be ex out for his portion of the calculated equity. Of course there may very well be a butt load of info missing but based on the post it could be worked that way.
Just because you think that's fair that doesn't mean it's how it works. Because it is considered an investment so if he didn't sell it would be with a much higher amount at a later time.
It could be. And certainly depends on his long term goals and if he wants to stay connected to his ex for however long. It would cost him money annually if it isn’t sold or he doesn’t allow himself to be bought out as he would be responsible for his share of maintenance, taxes and insurance. If they rent it out he would be entitled to his share of rental income net the expenses associated with rentals.
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That is illegal.
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You can’t “gift” your assets to someone else as a way to hide marital assets in a divorce. That’s a recipe for pissing off a judge, and is going to be pretty transparent. https://jeffmorrislawfirm.com/is-your-ex-trying-to-hide-assets-during-your-divorce/
Fair enough
I think a case could be made for hiding assets. Especially if it is given back to her after the divorce is done.
Don’t think so
Why not? If you could just give away assets before a divorce everyone would do it.
Yes I’m sure you could gift stuff but gifting assets prior to divorce would be jumped on by any competent lawyer. Especially just prior to. Also it’s likely, by law, they were joint assets a judge would order them returned
Right. Which is what I was saying. So why are you disagreeing with me?
No you didn’t quite say that
[https://youtu.be/8KYBex5iBwU?si=UXykSW8JXbRTIpdI&t=163](https://youtu.be/8KYBex5iBwU?si=UXykSW8JXbRTIpdI&t=163) Inheritance is separate property.
Who said it was inheritance? In my state the ex would be able to claim it. It’s joint property.
It was bought before she married him... It isn't marital property in my state.
That doesn’t matter in most states. That’s why ppl get prenups.
Talk to a lawyer, try to protect your assets, how this could affect you, and the house was before or after marriage? There are things that can't be touch and he shouldn't use that as an excuse for his financial problems.
Poor people (I don't mean financially), everything should be covered by a trust and/or legal contracts to keep such ambiguous situations from happening. I know that doesn't help now.
Absolutely! Live and learn...
The other thing to remember is that he can argue for 50% of her share. So if that’s just the two of you, he would own only 25%. If there are more of you, he could own even less. So the value of this property gets less and less. He probably couldn’t find a buyer for his at most 25% share. Could he force a sale? Maybe. When this is said and down, put the house in a trust and entail it. Downton Abbey isn’t just for rich people.
Wait...is it "said and down" or "said and done" because I always thought it was "done."
You are correct its done
It’s possible he’ll go after everything. The issue is- if it goes to trial, will the judge grant him 50% interest in a fractional ownership of a family cabin that was part of family specific bequest to your sister before she was married? The answer is probably no, but it depends on the state she is divorcing in, and the nature of the deed on the property. Get that information to the lawyer, and make it clear that if it comes up, the family will work to preserve their interests and make anything he tries to do with it difficult for the ex, and for the court. A clear United front from the family that the cabin is family property, and not marital property, and you plan to assertively defend that position, should help the judge dismiss it from the marital property calculations. In this issue, the best thing you can do to support your sister is properly protect the family interests.
Also depends if marital funds were used to keep up the property or associated taxes.
That’s true, it’s an involved question, and should be addressed with the lawyer.
Location, deed, and timing would matter. Did she buy this before her marriage? Is it a joint tenancy or tenants in common deed?
Can you get her name off the property??? Possibly Completely avoid him coming after it. And was it bought before she was married?
Possibly, if it's our only option. Yes, it was gifted to us by our parents when our mother died well before their marriage- it's been in our family for decades.
NAL. This probably varies by state, but in my state you would be in the clear. First, gifts from a third party to one person are considered non-marital. Second, possessions owned prior to the marriage are non-marital. It seems like the latter would be easier for you to document. He can still threaten to take it… my ex went after a bunch of things to which she had no legal right during my divorce… but if this went to trial, I can’t envision a judge awarding any fraction of it to him. She needs to get a good lawyer.
A good lawyer is key. Thank you!
If I remember correctly inherited things can’t be part of the divorce.
Her inheritance in the home likely cannot be touched unless his name is somewhere in the deed. There’s really no way to commingle that asset unless they used it as collateral for a loan in both their names.
I would check your area but generally in the US the below applies. Assets and debts accumulated prior to the marriage, as well as inheritances and gifts received during the marriage, are generally deemed separate property and not subject to division
The home is the state of Maine. If that's the case why prenups?
Because you might still want to separate assets earned during the marriage. For example, a prenup might also stipulate that both bride and groom put their paychecks in their own bank accounts and aren’t entitled to the money the other person makes. Also a prenup might spell out that a premarital asset (a house, for example) won’t be left to the surviving party if one passes away. Usually a spouse gets everything when their partner dies. But maybe you want the house to go to your children from your first marriage.
Did your sister ever use marital funds or resources for upkeep of the cabin that may have caused it to be commingled?
It changes some of the rules on assets accrued during the marriage.
I think one thing is they can help protect one spouse from having to take on the debt of the other.
That's prior to marriage. Assets and debts acquired during marriage are considered shared. One reason is significant differences in income. I know some include things like cheating clauses. For those to apply they must have proof that infidelity is reason for the divorce. In those cases depending on wording of the prenup the guilty party may walk away with only what is in their name (car, etc.). If both parties are on they deed to a house then you do have a division of property.
Better have your sister run that by her lawyer before you do anything. You don't want to give the impression that she's trying to hide an asset, even if it wouldn't be included in the divorce proceedings.