Does the law allow for appreciation of separate property that has been cominngled?

[prosedivorcee]

The original separate property was a gift of a check made out to one of the spouses. The money was used to purchase 40% of jointly held real estate that had appreciated passively due to inflation. Would the gift be credited back first and the balance divided proportionately? As the remaining 60% is marital, 30% goes to each spouse. So I believe the split should be 70% (40% + 30%) spouse with original gift / 30% spouse without the original gift. Would this be accurate?

Is a copy of the original gift check proof of the separate property? What other facts would the judge need? The judge dislikes the other party's attorney, and spouse has made it obvious to be a bum.

 

[army judge]

You're in NY, counselor. NY is what kind of property state?
Your logic is flawed.
The home appreciated.
You share and share alike. The law is merely common sense. Don't be misled about judges NOT liking lawyers, or liking one more.
That's nonsense.
The law is business. No one takes it personally. It isn't a baseball game.
Litigants don't win, they prevail.

 

[prosedivorcee]

N.Y. Dom. Rel. Law 236 (1980) (dual-classification)

Separate property is the narrow exception to the marital property rule, and is limited to the following categories: (3) gifts from third parties; Not all appreciation of separate property is marital. The courts have long distinguished between passive and active appreciation of separate property, and only active appreciation is considered marital property in which the non-titled spouse has an interest. Passive appreciation occurs when neither the titled spouse nor the non-titled spouse has made any active contribution that caused the asset to appreciate. Separate property co-mingled with marital property remains separate if it can be traced to its source
It should be noted that the spouse who contributed separate property may receive a credit for the amount of property contributed to the creation of the marital asset. Recent decisions have extended this concept to include the appreciation of the separate property as a credit to the spouse who contributed it. Once it can be shown that marital funds or labor have been contributed toward a nonmarital asset, the burden would then shift to the owner spouse to prove what nonmarital funds, if any, were contributed to the nonmarital asset. If the owner spouse is unable to meet the burden of proving what nonmarital funds were invested in the nonmarital property, then the entire appreciation would be subject to equitable distribution. Combining marital and separate funds in a single account generally makes the separate funds marital "only when it is impossible to trace the separate funds." The appreciation of separate property remains separate property (when it is pure and passive appreciation), Source-of-funds reimbursement is retroactive re-classification of marital assets into separate ones -- and these separate assets have been appreciating.

 

[army judge]

N.Y. Dom. Rel. Law 236 (1980) (dual-classification)

Separate property is the narrow exception to the marital property rule, and is limited to the following categories: (3) gifts from third parties; Not all appreciation of separate property is marital. The courts have long distinguished between passive and active appreciation of separate property, and only active appreciation is considered marital property in which the non-titled spouse has an interest. Passive appreciation occurs when neither the titled spouse nor the non-titled spouse has made any active contribution that caused the asset to appreciate. Separate property co-mingled with marital property remains separate if it can be traced to its source
It should be noted that the spouse who contributed separate property may receive a credit for the amount of property contributed to the creation of the marital asset. Recent decisions have extended this concept to include the appreciation of the separate property as a credit to the spouse who contributed it. Once it can be shown that marital funds or labor have been contributed toward a nonmarital asset, the burden would then shift to the owner spouse to prove what nonmarital funds, if any, were contributed to the nonmarital asset. If the owner spouse is unable to meet the burden of proving what nonmarital funds were invested in the nonmarital property, then the entire appreciation would be subject to equitable distribution. Combining marital and separate funds in a single account generally makes the separate funds marital "only when it is impossible to trace the separate funds." The appreciation of separate property remains separate property (when it is pure and passive appreciation), Source-of-funds reimbursement is retroactive re-classification of marital assets into separate ones -- and these separate assets have been appreciating.

Okay, you try that, yes, try it.

 

[prosedivorcee]

I will try it. I'd rather try it and lose than not try it and lose. It's possible I might win. I plan to take it to the highest court if necessary. There is a lot of money at stake and it is well worth it. Thanks for your support.

 

[army judge]

I will try it. I'd rather try it and lose than not try it and lose. It's possible I might win. I plan to take it to the highest court if necessary. There is a lot of money at stake and it is well worth it. Thanks for your support.

Hold on, how much do you consider a lot?
Did you or the other party provide the majority of that amount?
Would you say you contributed equally?
How long we're you married?
If your answer exceeds (or equals) seven figures, please retain a good attorney.
I give you credit for moxie, but, that alone won't allow you to prevail.

 

[prosedivorcee]

The total estate is about $3m. I provided the majority of that amount albeit from passive appreciation of "seed money". No, we did not contribute equally. 40 % was gifted to me from a 3rd party. We purchased property #1, sold it at a profit, used the proceeds to purchase property #2 and #3 and funded an investment account.

We filed for divorce after 18 years of marriage. Divorce was finalized six years after that.

I will obviously be using an attorney. I like to know all my options, do some of my own research, get other professional opinions in addition to my lawyer's. As you know, picking up the phone to ask a question to an attorney is not cheap. And any of these questions would be jumping the gun.

There is a lot more to this case than just this topic as you probably know, (ie., there was possibly some corruption that took place and many other issues). We are only at the stage of asking to re-argue the Decision. I don't want my lawyer to spend a lot of time on this issue or any of my other issues right now as he is working on getting the case re-opened and setting aside the judgment and decision. First things first.

I realize this is going to be a lengthy process. In the meantime, I still like to know what my options are and the likelihood of different paths, etc.

 

[Proserpina]

Seriously - talk to your attorney.

 

[army judge]

Pro se, would you attempt to offer advice to your heart surgeon? Res judicata, res judicata. If it happens, it won't be easy. If it happens, NONE of these issues are relevant upon appeal. You're putting the cart before the horse. Appellate courts don't litigate substantive matters. These issue are trial court matters. Appellate courts only concern themselves with due process and constitutional issues, along with fair trial practices.


Sent from my iPhone 4S via AT&T using Tapatalk

 

[prosedivorcee]

I am well aware of the difficulty of my arguments. One of the reasons I am on this board is just to get some other ideas that I could use to support my case. My attorney is only one person. I am just assisting him in attempting to give him some more ammunition.

The appreciation of separate property issue is just one of several issues that the court was not aware of the first time around, that I will be taking to court in an attempt to make them aware of and change the 50 / 50 current rubber-stamped split in the decision.

I have a notice of appeal in now because the lower court has not treated me fairly in the decision. As the judge knows I am waiting to appeal, she will most likely agree to re-argue.

When I re-argue in trial court, I feel that if they look at all the evidence, theory and case law I provide, they will adjust their decision in a more favorable way. And if they don't, they would not be following the law and so then, I will take it to a higher court.

And so, in my free time I am here on this board and on the web, just looking for other professional people's opinions.

 

[jdguy]

Most courts I am aware of will require the moving party to TRACE all assets. Tracing is a pretty well known legal term and you will need to prove these improvements etc and without any documentation it will be difficult. It sounds like you have the check which is a good sign, but you may need the writer of the check to confirm it was a check for one of the spouses and not a gift to both of you. If you weren't married when the check was written that is a helpful fact if the check came in when you were married a little more difficult to prove.

3 million estate is a lot, but again you will need to prove the assets and this could get very expensive. I have seen people spend more money on attorney fee's than they could possibly win in family court out of bitterness. If you have kids with the other spouse that is also a consideration a bitter legal battle with the other parent can create tensions if there are no kids then it is not a factor, but if there are children really think about them. If you get into litigation a lot of bitterness will ensue and you will both be intertwined with the children for the rest of your life i.e. high school graduation, college graduation, their marriage etc.

 

[shrinkmaster]

Why are you posting on old threads?

 

[prosedivorcee]

jdguy, Thank you for your response. My post is still relevant as we have not had our hearing yet. There are no children, so that is not an issue. The check came from my Mother who is elderly now. I would like to think that if a Mother writes a check to her daughter in her name alone, that the judge should be able to have enough common sense to recognize that is was intended to benefit her daughter and not necessarily her son-in-law. Blood is thicker than water. What is your opinion?