Marital Property – The Marital Estate and the First Steps In Preventing It

What is the marital estate?

A marital estate is comprised of funds and property that were gained by either one or both of the parties during the marriage, or that which a spouse contributed funds to (such as equity gained in property by paying a mortgage) even when, before the marriage, the other party had established a sole interest in that property. It also can include retirement funds, which were started before the marriage, but have been building up since the date of marriage.

The first question, of course, is what can be done to prevent “dissipation” (in other words, transfers or spending of funds) of the marital estate by the other spouse at the outset of the case. The filing of a divorce case alone will not automatically protect dissipation. Typically, if a client is afraid that the other spouse will try to sign the title of a house over to someone else, the first step is to file for dissolution of the marriage and an emergency motion for a TRO (temporary restraining order). Typically, the other party will not have to get advance notice (ex-parte) of the motion. However, the motion is only temporary, and the order will be sent to the spouse after filing. It is possible to try to rectify pre-filing dissipation, but that would require a normal motion.

Common sense must apply to protect assets before filing. A reasonable amount of money should be put aside in a separate account. Don’t leave the other party with nothing by emptying an existing account. The amount should be in line with what a court would consider as reasonable, necessary, and fair. Be careful when reading any documents the other party puts forward, particularly when they are real estate documents. Be watchful when a spouse has sole title to a property that they are not trying to transfer the title to a relative or friend. Some protection is offered by the title transfer signature requirements, but only to the extent of the person’s refusal to sign such documents.

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