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In Divorce, How Assets are Titled is a Minor Factor

More and more Rhode Island divorce and mediation clients arrive with the statements regarding their bank accounts, retirement accounts and believe that since the account is in his or her sole name, that it is not a "marital" asset. Unfortunately, unless there is a prenuptial agreement in place with appropriate provisions, I need to discuss with them the nature of divorce law in Rhode Island.

Unless there is a binding and enforceable prenuptial agreement in place, the Rhode Island Courts view marriage as an emotional and financial partnership. When one party owned assets prior to the marriage and did not commingle them (put the other spouse's name on them), they remain the property of that person and are not considered marital assets. Inheritances and gifts acquired during the marriage that are not commingled, are not marital assets.

However, other assets acquired during the marriage are "marital" assets, subject to division in a divorce, no matter whose name they are titled in. For instances, in some marriages each spouse maintains separate bank accounts. They each contribute one-half of the household expenses into a joint account to pay the mortgage, utilities, car insurance and child care expenses. Each then retains the balance of his or her wages in his or her separate account and each uses the money as he or she desires. When these people walk in my office, he/she expects that each will keep his/her separate bank accounts and retirement accounts even if there are large differences in values. This might seem fair, especially if one spouse spend the majority of his/her money on frivolous items while the other is more of a saver and investor.

In our "equitable distribution" state, we view the assets acquired by both parties during the marriage. Occasionally, a home will be purchased during the marriage in the name of one party if the other did not have a stellar credit score; even though the house is owned in one name, it is still a marital asset and the equity is subject to distribution to both parties. A business started in one person's name during the marriage is also marital in nature.

The same applies to all of the other assets as well. How the asset is titled is of minor significance. Equitable distribution (not "equal distribution") is based on numerous factors, including each party's contributions during the marriage to the acquisition, preservation or appreciation of their estates; contributions as a homemaker; the health and age of the parties; each person's employability and the opportunity for future acquisition of assets; and the wasteful use of assets.

Let us help you in pre-marriage counseling or the helping you through the equitable distribution of your marital estate.

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Law Office of Steven J. Hirsch, Esq

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