Q: During the latter part of our 20-plus-year marriage, I inherited rental properties, securities, and money from my parents who died within six months of each other. My husband convinced me to use most of the money and the proceeds from the sale of the stock to pay down our debts incurred for our children's college, etc., so that we could have some "financial breathing room," as he put it. He tried to talk me into putting the rental houses into our joint names and placing mortgages on them to pay off our home, but I became suspicious and refused. Shortly after we became debt-free thanks to my inheritance, he left me, and we are now involved in a nasty divorce.
I did not know at that time I used my inheritance that my husband was having an affair with a co-worker or that he had been consulting with a lawyer. Now my lawyer tells me that I have no leg to stand on to get back the inheritance I used to pay our debts.
My husband also says that I need less support from him because I receive income from my inherited rental properties. This does not seem fair since I was tricked.
A: Although we don't know if the law of your state will afford you any remedy, we believe that you can make a compelling argument that your inheritance should be returned.
While inherited assets received by a husband or wife during marriage are "nonmarital" property and not divisible at the time of divorce, the character of these assets may be changed, or transmuted, into marital property under certain circumstances. For example, using an inheritance to support the marriage may show an intention to make non-marital property marital. Likewise, placing non-marital property into joint names or commingling it so it becomes untraceable may cause transmutation. In all instances, however, whether non-marital property has become transmuted depends on the facts of each situation.
Here, since your inherited property was contributed to the marriage shortly before your husband left you and at his insistence, it would appear to us that a judge may well find that you had been duped into making transactions that would benefit your husband in these proceedings and not the marriage. Since family courts are courts of equity, we believe your lawyer should rethink his position and seek return of your inheritance.
SoloTips for the new year:
1. DON'T forget that decisions in matrimonial cases are based upon the facts presented by your lawyer and your spouse's lawyer. Thus, your credibility is important. So be honest.
2. DON'T burn all of the bridges between you and your spouse, especially if minor children are involved.
3. DON'T think your lawyer is a miracle worker who can solve your problems overnight. It has taken you years to get to this point.
4. DON'T make oral or written statements that you might not want to hear again.
5. DON'T discuss with anyone the communications you have with your lawyer.
6. DON'T rely upon the advice of friends who "have been through it" as to what you should get, what you should pay, or what is fair. Each case is different. Rely upon your chosen attorney.
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