Tag: Property Division

Gifts and Divorce

Kurt Cobain’s widow, Courtney Love, is dodging a final decision on who gets Kurt Cobain’s famous guitar: their daughter, Frances Bean Cobain, or her estranged husband. The dispute over Nirvana’s former lead singer’s famous guitar raises the issue of gifts and divorce.

Isaiah Silva – who’s in an ongoing divorce with Frances Bean Cobain (daughter of the late Kurt Cobain)) – claims Courtney’s refused to come to the door twice when his investigators tried to serve her with deposition papers. According to the documents, she’s also hiding from the L.A. Sheriff’s Dept.’s attempts to do the same.

I’ve written about the Nirvana guitar dispute before. At issue is the facts surrounding the 1959 Martin D-18E acoustic guitar Kurt played during Nirvana’s “MTV Unplugged” concert. ‘MTV Unplugged in New York’ is a live acoustic performance album by Nirvana.

The album debuted at number one, was Nirvana’s most successful posthumous release, went 5x platinum, and won a Grammy Award.

The guitar’s been a heated point of contention in the divorce. Frances says the “priceless family heirloom” belongs to her, but her husband says it’s his because, she gifted it to him during the marriage.

Florida Divorce Gifts

Florida is an equitable distribution state, unlike California, which is a community property state. As an equitable distribution state, in divorce, the court sets apart to each spouse’s nonmarital assets and liabilities, and distributes the marital assets and liabilities between the parties.

The court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors. These factors include things like the contribution to the marriage by each spouse, the economic circumstances of the parties, and any interruption of personal careers or educational opportunities of either party for instance.

So, what are “marital assets and liabilities”? They include things like assets acquired during the marriage, and interspousal gifts during the marriage for instance. However, “nonmarital assets” include things like assets acquired before the marriage, and assets acquired by non-interspousal gift.

The fate of Kurt’s famous guitar then, could depend on whether the guitar was a gift from one spouse to another (as Isiah is alleging), and is therefore treated as marital property in an equitable distribution state, or whether it is non-marital.

About a Guitar

TMZ reached out to Courtney about the controversy, but her representatives claim she’s already publicly stated the guitar is a family heirloom and doesn’t belong to anyone other than family, which echoes what she stated previously.

If you don’t know Nirvana or the unplugged concert, stop reading and click here. You won’t be sorry.

Isaiah is claiming he owns Kurt’s former Martin D-18E guitar from the famed MTV performance. The guitar is a very rare; only 300 were made. However, the guitar’s sentimental value is immeasurable, as it was the last guitar played by Kurt before his suicide.

Silva is claiming he owns it because it was given to him by his wife as a wedding present, though she denies gifting it to him. Courtney Love takes her daughter’s side, and has said:

“It’s not his to take. It’s a treasured heirloom of the family’s”

If a judge were to determine that Kurt’s guitar was not a wedding gift from Frances – and given its multi-million dollar and sentimental value, a Cobain family heirloom – it would be Frances’. However, if a judge decides the guitar was a gift from Frances to her husband, an “inter-spousal gift”, the guitar would be marital property.

The TMZ article is here.

 

Is the Gift Really Yours?

How are those gifts you received during the marriage handled in a property division? The thought comes to mind as more people are buying divorce gifts to be given during divorce parties. Many people are surprised to learn how their spouse’s gifts to them during the marriage are treated.

Florida Equitable Distribution

When people divorce, there is a property division which we call equitable distribution in Florida. I’ve written about property division in Florida many times before. Equitable distribution is governed by statute and case law.

Generally, courts set apart to each spouse their non-marital assets and debts, and then distribute the marital assets and debts between the parties. In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal.

Equitable distribution is a court evolved concept in Florida. It is used to achieve as fair a division of marital assets as possible. Marital assets are those assets acquired by the parties during their marriage from their work efforts, services, and earnings.

In determining whether certain property is a marital asset, the question is not which party holds title to the asset.

Our statute defines assets and liabilities falling within each of these categories, and establishes certain presumptions to assist in categorizing each asset and liability during a property division. The court then divides the marital assets and liabilities between the spouses.

Dividing Gifts Between Spouses

Under well-established statutory and case law in Florida, is that a gift between spouses during the marriage is actually a marital asset.  But proving something valuable was a gift can be tricky, as people don’t prepare paperwork when they are giving gifts.

A gift between spouses during the marriage is established by showing donative intent, delivery or possession of the gift, and surrender of dominion and control of the gift.

In other words, a gift is made when a donor, intending to make a gift, delivers the gift to the donee and relinquishes all possession and control of the gift.

Was it a Gift or a Loan?

Married couples receive some money from third parties – such as parents and other parents – during the marriage: sometimes the money is to carry them over during an emergency. Should that money be divided between them? It depends on whether it was a loan, and they should give the money back, or it was a gift to both of them, and the money is theirs.

Gifts to either spouse from a third party – such as a parent – are considered separate property and are not divided by the court. However, the caution against commingling still applies. If a spouse deposited the money from her parents in a joint account, it then probably became marital property, even if it was intended just for her.

In many divorces, one spouse claims money received from or given to a parent, sibling, etc. was a gift and the other claims it was a loan. Circumstances can be painted in a different light many years after the fact, and lawyers and judges must piece together what information they can to make a case and a decision.

If you receive or make a loan during your marriage, make sure its terms are fully documented in some sort of written and signed promissory note. If you receive or make a gift, draw up simple paperwork indicating specifically to whom the gift is being made, and that there is no expectation of repayment.

 

Divorce & Property Values

Hong Kong is one of the most expensive cities in the world. According to the Hong Kong Census and Statistics Department, divorce has steadily increased, and is nearly three times higher than in 1991. Is there a connection between real estate prices, divorce and property divisions?

As Bloomberg reports, the usual suspects for Hong Kong’s sky-high property prices are low interest rates, a housing shortage and demand from mainland China. But there’s another unforeseen factor: divorce.

Demand for separations and remarriages have accelerated sharply over the past two decades as the former British colony has deepened its integration with the mainland.

Between 1976 and 1995, cumulative total 84,788. In the subsequent years, through 2015, divorces shot up to 323,298.

Looser travel restrictions between Hong Kong and the mainland after Britain handed the colony back in 1997 have played a role in encouraging Hong Kong residents to find new partners across the border.

Florida Divorce and Real Estate

I’ve written on the role of divorce and real estate before. In many cases, declining house prices make it less likely that a homeowner will get divorced, but more likely that a renter’s marriage will end. Why?

Generally, courts distribute the marital assets and debts between the parties. In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal.

Equity in the marital home is sometimes the most valuable asset. However, during periods of market downturns, the equity is a lot less, and home values can sometimes be upside down. When the equity is too low to distribute, or selling a house may mean a loss, people don’t want to sell, and have to stay married.

Researchers also think that the drop in divorce rates probably have something to do with the fact that a drop in the equity in your house traps unhappy couples in their house. However, renters can find two affordable apartments easier.

The Case of Hong Kong

Hong Kong’s housing planners didn’t anticipate the wave of break-ups. The cumulative gross number of new domestic housing units built between 1976 and 1995 reached 1,267,335. In the 19 years afterwards that number dropped to 857,378.

The divorce phenomenon is feeding into a market frenzy that the Hong Kong government has found increasingly tricky to manage. As mortgage lending booms and prices reach records, a mix of rising interest rates, frothy property valuations and the potential for a market collapse are frequently flagged as one of the biggest risks to the economy.

In cases of marriage break ups, both members of a former couple can end up on waiting lists for public housing, with private homes proving unattainable.

Households need 18 years of median income to buy a home, more than anywhere else in the world.

The Bloomberg article is here.

 

Unequal Property Division

A Husband recently demanded an unequal property division in his divorce. He wanted more than half of a $225 million fortune, and for his Ex to get about $6 million. He claimed he was entitled to more than half because of his “genius”. Are you entitled to more than half in a divorce?

Valuing Genius

Randy Work, 49, a former executive at Texas-based private equity firm Lone Star, had first claimed that his wife of 20 years, Mandy Gray, was entitled to only $6m because she had an affair with the couple’s personal physiotherapist.

The pair, who are both American and have two teenage children, met in 1992 and married in 1995. They split up in 2013 when Gray began an affair with the couple’s physiotherapist, 44, who she now lives with in a rented flat in Kensington.

A British high court judge rejected the Husband’s claim that he made an “exceptional contribution” to the marriage and was therefore entitled to more than a 50-50 split of the couple’s assets, which include a mansion in West London, complete with swimming pool and fitness center and a ski lodge in Aspen.

Ruling on their divorce in 2015 Justice Holman told the businessman that his wealth contribution – which Work said totaled more than $300m in 10 years – was not “wholly exceptional” and rejected his claim to be a financial “genius”.

“I personally find that a difficult, and perhaps unhelpful, word in this context,” Holman said. “To my mind, the word ‘genius’ tends to be overused and is properly reserved for Leonardo da Vinci, Mozart, Einstein and others like them.”

Work, who has spent at least $3m fighting to keep his wife from collecting half of the family fortune, took the case to the court of appeal which on Tuesday unanimously rejected his appeal against the trial judge’s ruling.

Florida Property Division

I’ve written about property division in Florida many times before. Property division, or equitable distribution as it is called in Florida, is governed by statute and case law.

Generally, courts set apart to each spouse their nonmarital assets and debts, and then distribute the marital assets and debts between the parties. In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal.

However, if there is a justification for an unequal distribution, as in the Work divorce, the court must base the unequal distribution on certain factors, including: the contribution to the marriage by each spouse; the economic circumstances of the parties, the duration of the marriage, or any interrupting of personal careers or education.

Additionally, courts can consider the contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

However, courts generally can’t base unequal distribution on one spouse’s disproportionate financial contributions to the marriage unless there is a showing of some “extraordinary services over and above the normal marital duties.”

The English Divorce

During the divorce hearing Holman had said the case “should be so easy” to settle as there was “plenty of money to go round” and criticized the couple for descending into “unedifying and destructive pugilism”.

“In our view the husband has failed to demonstrate that Holman J’s decision was wrong,” three court of appeal judges said.

London has become known as the divorce capital of the world because British judges tend not to discriminate between breadwinner and homemaker and order equal splits of combined fortunes.

However, Work had hoped to convince the court of appeal judges to allow him to join those few men who had been granted more than half of the combined assets in a divorce in recognition of the “wholly exceptional nature” of their success.

Holman had ruled that although Work was an “astute businessman”, Gray was a “highly intelligent” woman who had given up her career to follow her husband to Tokyo, where he made hundreds of millions of pounds exploiting the Japanese financial crisis.

“A successful claim to a special contribution requires some exceptional and individual quality in the spouse concerned. Being in the right place at the right time or benefiting from a period of boom is not enough,” Holman said.

“It may one day fall for consideration whether a very highly paid footballer, who is very good at his job but may be no more skillful than past greats, such as Stanley Matthews or Bobby Charlton, makes a special contribution or is merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights.”

Holman said Work and Gray, 47, had been “two strong and equal partners” and he would not have been able to amass his vast fortune without her contribution.

The Guardian article is available here.

 

Dissipation: Wasting Money in Divorce

Mary J. Blige, has filed for divorce from her estranged husband, Martin “Kendu” Isaacs. In court filings, there are allegations that he spent hundreds of thousands of dollars on his girlfriends. How does this impact the property division?

Mary has won nine Grammy Awards, four American Music Awards, and has recorded eight multi-platinum albums. She is the only artist with Grammy Award wins in R&B, Rap, Gospel, and Pop. However, she is now concerned about dirty tricks in divorce.

Dirty Tricks

Some couples divorce in a business-like, and even a friendly way. They recognize that coming to a fair end as quickly as possible allows them to get on with their lives.

However, there is no shortage of dirty tricks in divorce. One of the most common is to “dissipate,” or intentionally squander money so a spouse can’t get a fair share of it in the divorce.

Mary and her husband Martin married back in 2003. The divorce cited irreconcilable differences as the reason for the split. The couple has no children together. Mary is purportedly asking the judge to deny Martin’s ability to get spousal support.

According to TMZ, in recent filings, Martin is accused of having dissipated $420,000 of the parties’ marital funds. Martin was Mary’s manager. So, it could be that much of the money allegedly spent on himself or a girlfriend can be chalked it up as “travel charges.” However, Mary alleges the $420,000 in expenses were not business-related.

Property Division

In Florida divorces, courts distribute the marital assets and liabilities between the parties with the premise that the distribution should be equal, unless there is a justification for an unequal distribution. I’ve written about various aspects of property division before.

Some of the factors to justify an unequal distribution of the property include things like the financial situation the parties. The length of the marriage, whether someone has interrupted their career or an educational opportunity, or how much one spouse contributed to the other’s career or education.

Dissipation and Waste

One of the relevant factors courts look to is whether one of the parties intentionally dissipated, wasted, depleted, or destroyed any of the marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

Spouses could dissipate assets by spending money on girlfriends, as Mary alleges. Other instances of waste have included gambling losses, and drug usage. Some people would rather lose the money outright than split it with their spouses.

Where this kind of marital misconduct results in a depletion or dissipation of marital assets, it can serve as a basis for unequal division of marital property. Alternatively, the misconduct can also be assigned to the spending spouse as part of that spouse’s equitable distribution.

Martin is purportedly asking for more than $110,000 per month in spousal support, which Mary objects to. Mary is quoted as saying: “I am not responsible for supporting [Martin’s] parents and his children from another relationship which he lists as ongoing monthly expenses.”

The TMZ article is here.

 

Property Division & Getting Your Name Off Title

Long after your divorce’s property division, you remember that your name is still on the deed and mortgage to your old home. It may be important to remove your name from title in order to buy a new home or get credit.

Getting A Court Order

One way to remove your name from title is to go back to the family law judge, and ask for an order requiring that your name be removed from the deed and mortgage. However, to remove your name from title, your ex-spouse will have to refinance the property.

A controlling issue in these types of cases is whether your spouse has the ability to refinance. If your spouse has bad credit, is unemployed, or gets turned down for a loan, it will be hard to force your ex to do something that can’t be done.

However, if your ex-spouse has the ability to remove your name off the mortgage, but has never bothered to, a court order could work. However, you whenever you file for an order in court, you are going to incur attorney’s fees and costs, and that could get expensive.

I’ve written about real estate and property divisions before. Unless your marital settlement agreement or final divorce decree is clear, there may not be any choice but to run back to court for an order.

However, if your name is still on title, your ex-spouse can’t sell the home unless you sign the deed over to her or a new buyer. Additionally, the home cannot be further mortgaged unless you sign on the mortgage papers too.

Selling the Home

If you and your ex agree to sell the property, the sale will usually require the payoff of the existing mortgage with your name on it. That would take your name off the loan and ownership of the home. The same is true if your ex refinances: a new loan should pay off the old mortgage, and a satisfaction of mortgage will be recorded.

Hidden Problems

There are other problems in a property division in which your name is still on title. In the even that your ex-spouse does not pay the mortgage timely, your own credit will suffer the late notices.

Additionally, if someone is hurt visiting your old home, that person will sue the record title owners for their damages. If your name is on title as an owner, you could be sued. Having liability insurance may be in order, which requires talking to an insurance agent.

My Florida Bar Journal article on property is here.

Tips to Dividing Your Property

On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Saturday, March 15, 2014.

In a Florida divorce we divide only the marital assets and debts. The process of dividing marital property starts with inventorying everything you acquired. Anything you brought into the marriage, anything inherited, and anything excluded by a prenuptial agreement, is generally not marital.

Hiding Assets

One of the worst thing you can do is hide assets. You may think you can get away with hiding assets, but keep in mind that we divorce attorneys are suspicious, and start with the assumption that assets are being hidden.

From the time you marry until the day your divorce is final you owe a “fiduciary duty.” If you violate this duty there can be legal consequences: a judge can order you to pay your spouse’s legal expenses, you could face an unequal distribution, and you will lose credibility with the judge.

Mediating

The best thing you can do for yourself is to try to settle your property division between the two of you, without mediators and out of court. But what if you can’t come to an agreement?

Hire a mediator to help resolve the tough issues that have kept you from agreeing with your spouse. Your attorney mediates cases very often, and he or she will try to select a mediator that they think can best help you settle your case. Since Florida requires mediation as part of the divorce process anyway, I frequently advise an early mediation – even before you file.

Don’t fight over ‘pots and pans’. No one wins if you end up in court arguing about who gets the Tupperware. Some things have emotional attachments, and try to decide before hand with your attorney what things are most important to you.

Going to Court

Martial property is divided according to Florida’s equitable distribution laws. Unlike courts in California and western states for instance, which are community property states, Florida is an equitable distribution state. In Florida, we start with the principle that marital property is divided equitably, not necessarily equally.

In Florida, a spouse’s financial contribution to the asset, or a spouse’s ability to support themselves post-divorce, or even infidelity can be taken into consideration when dividing property.

You should familiarize yourself with how Florida courts divide property. It will go a long way in helping you when trying to negotiate with your spouse. In fact, you should even consider reading up on Florida’s Chapter 61, the divorce statutes.

To summarize, try to work with your spouse, don’t squabble over the small stuff, don’t hide assets, and learn how Florida laws impact a judge’s decision if they have to make the call over how to divide your life.