Multiple Questions about division of real-estate

[justalayman]

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.

Ok. I went and read, specifically about New Mexico when pondering my response. Have you or is this just off the cuff for you?

 

[Ohiogal]

At this point in time -- 4 years after the divorce -- you have to pay what the order states you pay. It is that easy. Arguing about what that could be makes no sense since the divorce is over and final and far past the time for an appeal.

 

[MarcyS]

I really appreciate you all arguing about my issue to help me figure it out.

since the divorce is over and final and far past the time for an appeal.

In fact the divorce is not over. We were granted bifurcated divorce in 2014. Last month we had court and the judge tried to talk us both into agreeing I should pay him $39K partially based on the idea he is owed 1/6 of what the value of the total property has appreciated. I agreed. His lawyer convinced the judge to listen to his accountant for a moment before they gave an answer. His accountant got the judge convinced I owe him $97K mostly based on the idea I owe him half the value of the metal building. A few moments later, my lawyer got the judge convinced she should accept a motion to reconsider because I was unprepared to have my accountant at court (my lawyer thought the idea I owe him half the value of one building in particular was so preposterous we didn't need to be prepared to argue the value or completion status of the building).

So, I have an accountant prepared to argue that the way his accountant decided the value of the metal building was less than optimal, and I'm getting my builder prepared to explain the completion status of the building at the time of the marriage.

Sometimes I wonder if I should just skip the "reconsideration" and appeal the whole idea that I owe him half the value of the metal building. Truthfully though, I'm a little afraid I may find out I owe him half the value of the total property or something else I could never pay without selling where I have my business.

 

[Zigner]

It's soooo much easier to offer advice when one gets the whole story.

 

[Ohiogal]

I really appreciate you all arguing about my issue to help me figure it out.




In fact the divorce is not over. We were granted bifurcated divorce in 2014. Last month we had court and the judge tried to talk us both into agreeing I should pay him $39K partially based on the idea he is owed 1/6 of what the value of the total property has appreciated. I agreed. His lawyer convinced the judge to listen to his accountant for a moment before they gave an answer. His accountant got the judge convinced I owe him $97K mostly based on the idea I owe him half the value of the metal building. A few moments later, my lawyer got the judge convinced she should accept a motion to reconsider because I was unprepared to have my accountant at court (my lawyer thought the idea I owe him half the value of one building in particular was so preposterous we didn't need to be prepared to argue the value or completion status of the building).

So, I have an accountant prepared to argue that the way his accountant decided the value of the metal building was less than optimal, and I'm getting my builder prepared to explain the completion status of the building at the time of the marriage.

Sometimes I wonder if I should just skip the "reconsideration" and appeal the whole idea that I owe him half the value of the metal building. Truthfully though, I'm a little afraid I may find out I owe him half the value of the total property or something else I could never pay without selling where I have my business.

You are the one who stated you were divorced in 2014. You NEVER said it was bifurcated. So why did it take until LAST month to get back to court? And if you have an attorney, that person is the one who should and can best advise you.

 

[MarcyS]

I'm simply trying to be an informed consumer of my attorney's services.
I'm sorry if I have done something improper by how I phrased my questions. I was trying to give only the relevant information to make your time better spent. I didn't figure property was divided differently in bifurcated and non bifurcated divorces.
We've been to court a few times over the years, deciding one issue at a time. The division of this particular property should finish everything. I hope.

 

[MarcyS]

As I studied what all you helpful people wrote, I'm again stumped. It seems most likely that most of you believe I owe him 1/6 of the appreciation of the total asset, not 1/2 of the metal building. But, the judge seems to believe I owe him 1/2 of the metal building (but, she seems to see this issue differently at different court dates). So, I must decide if I argue for truth and completely appeal or make my life simpler and go to the reconsideration hearing prepared to claim I already owned x% of the metal building and argue the value the particular attorney puts on the building. (He took an appraisal and alloted the same amount the county tax assessor does to the land, then divided the rest between the "old" cinderblock and "new" metal building based on square footage whereas my side claims the land should be considered worth more than the tax assessor values it since their total doesn't match the appraisal. BTW I don't mean what they are taxing me on, I got a copy of the "Marshall Swift" analysis that the county tax assessor uses.)
It was income from my business, that I had before marriage, that paid all mortgage payments on this land during the years we were married. But, if I understand everyone's posts correctly, you say that doesn't make my parents have less of a share or change this asset into more my ex's. Right?

 

[MarcyS]

Ohiogal may have taken my "Thanks for arguing" statement as sarcasm. I assure you I did not intend it that way. I really do thank all of you who bothered to post any thoughts at all about my issue. You act like some of you are right and some of you are wrong, but I must be prepared that my attorney or the judge may see the issue the way some of you see it, or the way others of you see it, or entirely a different way. You are helping me by arguing.

 

[Ohiogal]

As I studied what all you helpful people wrote, I'm again stumped. It seems most likely that most of you believe I owe him 1/6 of the appreciation of the total asset, not 1/2 of the metal building. But, the judge seems to believe I owe him 1/2 of the metal building (but, she seems to see this issue differently at different court dates). So, I must decide if I argue for truth and completely appeal or make my life simpler and go to the reconsideration hearing prepared to claim I already owned x% of the metal building and argue the value the particular attorney puts on the building. (He took an appraisal and alloted the same amount the county tax assessor does to the land, then divided the rest between the "old" cinderblock and "new" metal building based on square footage whereas my side claims the land should be considered worth more than the tax assessor values it since their total doesn't match the appraisal. BTW I don't mean what they are taxing me on, I got a copy of the "Marshall Swift" analysis that the county tax assessor uses.)
It was income from my business, that I had before marriage, that paid all mortgage payments on this land during the years we were married. But, if I understand everyone's posts correctly, you say that doesn't make my parents have less of a share or change this asset into more my ex's. Right?

Your business income is MARITAL income if the business earned it during the marriage regardless of when you started the marriage. So therefore anything paid with business income is a marital share. And it is possible that you would owe him half of the building value depending on whether your parents invested anything into it or how the building is determined to be owned by them at all.

 

[Ohiogal]

Ohiogal may have taken my "Thanks for arguing" statement as sarcasm. I assure you I did not intend it that way. I really do thank all of you who bothered to post any thoughts at all about my issue. You act like some of you are right and some of you are wrong, but I must be prepared that my attorney or the judge may see the issue the way some of you see it, or the way others of you see it, or entirely a different way. You are helping me by arguing.

Nope. Wasn't taking it as sarcasm. I am working on four other legal issues at this point in my practice and checking and tend to be quite short with my posts.

 

[justalayman]

Your business income is MARITAL income if the business earned it during the marriage regardless of when you started the marriage. So therefore anything paid with business income is a marital share. And it is possible that you would owe him half of the building value depending on whether your parents invested anything into it or how the building is determined to be owned by them at all.

As I read things the new building is on the same property lot as the first building. If true, barring a contract providing any given person ownership or greater rights in the new building, it is simply an additional fixture on the property and is owned by all three tenants equally.

 

[HRZ]

1/6 of the appreciation of the whole may be rather close to 1/2 of the appreciation of the bare metal building ....and extensive debate further only makes so called experts richer

As an aside the market value of a building that might not be lawfully subdivided is subject to considerable discount ...and the market value of a minority interest that is difficult to partition is also subject to a discount .

 

[MarcyS]

As an aside the market value of a building that might not be lawfully subdivided is subject to considerable discount ...and the market value of a minority interest that is difficult to partition is also subject to a discount .

I'm not sure what you mean by "subject to a discount" Could you expand?

 

[LdiJ]

I'm not sure what you mean by "subject to a discount" Could you expand?

I am sorry but most of what he said in that post was nonsense in any context related to this thread.

 

[MarcyS]

Do you think I owe him 1/6 of the appreciation of the total property because the deed makes the property 1/3 mine? Or do you think I owe him 1/2 of the appreciation of the total property because my income paid the mortgage? I wish I could put a poll on this site.