Multiple Questions about division of real-estate

[MarcyS]

What is the name of your state? New Mexico

In 2002, I bought a property with both of my parents. It had one building (cinderblock restaurant 3500 sq. ft.). We began to build another (metal shell 5000 sq ft.). In Nov. 2004 I married. At that time, the "new building" had passed foundation inspection. And, the metal shell and roof were in place. In fact, we put colored paper inside the walls and held the wedding inside the metal building. After the date of marriage, the building was finished (drywall, top out inspection, plumbing inspection, hvac, gas, electrical inspections).

I divorced in 2014. For all those years, my own business (not my parents', not my husband's) paid the mortgage on the property. But, my parents' names were on the loans, deed, and on the insurance. My husband's name is not on anything.

It was asserted by an accountant that I owe him half the value of the metal building (and nothing else on the property), since I got it after we married. The judge seems to believe this as well. Below are the questions I need answers to. Please answer any or all that you can. Thanks so much.

1. For purposes of the divorce, is the property mine, half mine, or a third mine?
2. Is the idea that I owe him half the value of the metal building and nothing else on the property reasonable? (at all likely to be a judge's final decision)
3. Does it matter how far along the metal building was when we married? (Can I reasonably assert I already owned some percentage of the current asset before we married? I have detailed records of when I paid for various construction-related tasks.)
4. To put a current value on the metal building, is it reasonable for me to take a recent appraisal on the total property and split it the same way our county tax assessor splits it? (if assessor has 43% of the assessed total property value for the metal building, I use 43% of the total appraisal as a value for the metal building)
5. What is a reasonable way for me to assign a portion of the total remaining mortgage owed to the metal building?

 

[HRZ]

You don't own 43% of the parcel ...the parcel is held by the deeded owners which includes your parents ...and you didn't tell us about how it's deeded.

 

[MarcyS]

You don't own 43% of the parcel ...the parcel is held by the deeded owners which includes your parents ...and you didn't tell us about how it's deeded.

I'm not sure what you're getting at. For purpose of the divorce, I either own all, 50% or 33%. The language of the deed implies we all three own it as much as any other. Do you want to see a scan of the deed? Do you have thoughts on my other questions?

 

[justalayman]

If there is no division of interest specified on the deed it is assumed it is equal shares to each. That means your share (1/3) is all that is dealt with in your divorce.


In the most basic terms your husband has a claim to 1/2 of the appreciation of value of your share of the property and 1/2 of the appreciation of the value of your business acquired during the time of your marriage.

 

[LdiJ]

What is the name of your state? New Mexico

In 2002, I bought a property with both of my parents. It had one building (cinderblock restaurant 3500 sq. ft.). We began to build another (metal shell 5000 sq ft.). In Nov. 2004 I married. At that time, the "new building" had passed foundation inspection. And, the metal shell and roof were in place. In fact, we put colored paper inside the walls and held the wedding inside the metal building. After the date of marriage, the building was finished (drywall, top out inspection, plumbing inspection, hvac, gas, electrical inspections).

I divorced in 2014. For all those years, my own business (not my parents', not my husband's) paid the mortgage on the property. But, my parents' names were on the loans, deed, and on the insurance. My husband's name is not on anything.

It was asserted by an accountant that I owe him half the value of the metal building (and nothing else on the property), since I got it after we married. The judge seems to believe this as well. Below are the questions I need answers to. Please answer any or all that you can. Thanks so much.

1. For purposes of the divorce, is the property mine, half mine, or a third mine?
2. Is the idea that I owe him half the value of the metal building and nothing else on the property reasonable? (at all likely to be a judge's final decision)
3. Does it matter how far along the metal building was when we married? (Can I reasonably assert I already owned some percentage of the current asset before we married? I have detailed records of when I paid for various construction-related tasks.)
4. To put a current value on the metal building, is it reasonable for me to take a recent appraisal on the total property and split it the same way our county tax assessor splits it? (if assessor has 43% of the assessed total property value for the metal building, I use 43% of the total appraisal as a value for the metal building)
5. What is a reasonable way for me to assign a portion of the total remaining mortgage owed to the metal building?

You need to advise your parents to hire an attorney and insert themselves into your divorce if an accountant and the judge are trying to give part of their property to your soon to be ex. The metal building was half completed when you got married and is NOT 100% your property.

 

[justalayman]

You need to advise your parents to hire an attorney and insert themselves into your divorce if an accountant and the judge are trying to give part of their property to your soon to be ex. The metal building was half completed when you got married and is NOT 100% your property.

nobody is attempting to give the husband any physical share of anything here. They are stating husband has owed 1/2 the value of the shed building. Parents are not in jeopardy of losing anything and have no reason to hire a lawyer.


The completion status of the building is irrelevent. It is the value of the entire property at the time of the marriage compared to the value of the entire property at the time of filing for divorce. Op owns 1/3 of the property so spouse has a claim for 1/6 of the appreciation in value of the entire property.

 

[LdiJ]

nobody is attempting to give the husband any physical share of anything here. They are stating husband has owed 1/2 the value of the shed building. Parents are not in jeopardy of losing anything and have no reason to hire a lawyer.


The completion status of the building is irrelevent. It is the value of the entire property at the time of the marriage compared to the value of the entire property at the time of filing for divorce. Op owns 1/3 of the property so spouse has a claim for 1/6 of the appreciation in value of the entire property.

In the original post the following was stated:

It was asserted by an accountant that I owe him half the value of the metal building (and nothing else on the property), since I got it after we married. The judge seems to believe this as well.

Also, the spouse does NOT have a claim for 1/6 of the value of the entire property as the property was purchased several years before the marriage. Therefore 1/6 of the equity accrued during the marriage would be an accurate answer, but only if marital income paid for that equity.

 

[justalayman]

In the original post the following was stated:



Also, the spouse does NOT have a claim for 1/6 of the value of the entire property as the property was purchased several years before the marriage. Therefore 1/6 of the equity accrued during the marriage would be an accurate answer, but only if marital income paid for that equity.

Please read my post before commenting on them. I said 1/6 of the appreciation in value during the marriage. Not 1/6 of the value of the property.

And no, it isn’t only if marital property paid on the mortgage. It is any appreciation (equity is not used in this calculation) of the proeprty’s Value. In New Mexico, appreciation of even seperate property is marital property.

 

[LdiJ]

Please read my post before commenting on them. I said 1/6 of the appreciation in value during the marriage. Not 1/6 of the value of the property.

Your exact statement was:

Op owns 1/3 of the property so spouse has a claim for 1/6 of the appreciation in value of the entire property.

And no, it isn’t only if marital property paid on the mortgage. It is any appreciation (equity is not used in this calculation) of the proeprty’s Value.

I disagree with you if no marital property is used to support the asset. You said it yourself:

And income during the marriage is considered marital property unless it is derived solely from separate property and it remains seperate property.

 

[justalayman]

Your exact statement was:





I disagree with you if no marital property is used to support the asset. You said it yourself:

Here is what my original post stated;

In the most basic terms your husband has a claim to 1/2 of the appreciation of value of your share of the property and 1/2 of the appreciation of the value of your business acquired during the time of your marriage.

what are you not understanding there?


After additional reading I realized I was incorrect and edited the part about maintaining seperate property. The appreciation of seperate property does become marital property, period.

 

[LdiJ]

Here is what my original post stated;

what are you not understanding there?


After additional reading I realized I was incorrect and edited the part about maintaining seperate property. The appreciation of seperate property does become marital property, period.

Only if the income from that property was marital or that property was supported by marital income. I do not believe that the facts as presented necessarily support that.

And, you still have not edited post number six to correct this entirely erroneous statement:

Op owns 1/3 of the property so spouse has a claim for 1/6 of the appreciation in value of the entire property.

 

[justalayman]

Only if the income from that property was marital or that property was supported by marital income. I do not believe that the facts as presented necessarily support that.

that’s because it doesn’t make a difference. You are wrong. Appreciation of a seperate asset is considered marital property, period.

[/QUOTE]And, you still have not edited post number six to correct this entirely erroneous statement:[/QUOTE]
T
It’s nkt an entirely erroneous statement. It is an incomplete statement. I posted it in its entirety in a prior post where I said it was appreciation during the marriage. If you want me to spell it out you I willl


The husband is due 1/6 of the appreciation of the entire property accrued during the marriage.

 

[justalayman]

You are not understanding the difference between equity and appreciated value. They are two entirely seperate commodities. Your statement regarding paying on a seperate asset using marital assets proves that. There need be no payments on an asset for it to appreciate. The appreciation of value (not accrued equity) is what is becomes a marital asset. Equity doesn’t play into that calculation.

 

[justalayman]

I should probably have read my own post better. Not only was my statement in post 6 not incorrect, it wasn’t incomplete either.

The completion status of the building is irrelevent. It is the value of the entire property at the time of the marriage compared to the value of the entire property at the time of filing for divorce. Op owns 1/3 of the property so spouse has a claim for 1/6 of the appreciation in value of the entire property.

I did state it was the value change (presumed appreciation) during the marriage. Wow, I actually thought ldij might have been correct in correcting me. I was wrong.

 

[LdiJ]

I should probably have read my own post better. Not only was my statement in post 6 not incorrect, it wasn’t incomplete either.




I did state it was the value change (presumed appreciation) during the marriage. Wow, I actually thought ldij might have been correct in correcting me. I was wrong.

The appreciation in separate property does not become marital unless it is supported by marital income.

Example, if someone comes into a marriage with a stock account and does not add any marital income to that account, any growth in that account is NOT marital.

The reason why appreciation of say a personal residence or vacation home becomes marital is because marital income (wages) are used to pay the mortgage. If it was an inherited home, and funds from a trust fund were paying the mortgage and maintaining the property the appreciation would not become marital.

If someone inherits a Picasso or some other valuable artwork it remains their separate property and does not have to be sold in a divorce to give money to a spouse just because it appreciates in value.