Ask a Divorce Lawyer topics for March 16: Incorrectly calculated child support; using premarital money to purchase a home

Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:

• My child support was based on a worksheet that included erroneous gross information for me. Am I stuck paying the wrong amount of child support?
• My wife had some premarital money that we used to buy our first house. Is she entitled to any of that money back?

Question:

My child support was based on a worksheet that included erroneous gross information for me. I did not catch the mistake until after the judge signed off. The judge denied my motion claiming a mistake, saying he thinks my ex and I agreed to this higher number so that the actual child support would be greater since I'm not paying alimony.  There is no proof anywhere that she and I made this agreement. Am I stuck paying the wrong amount of child support?

Answer:

First I must preface my answer that I am licensed to practice law in Nebraska and can give you general information about your situation. I would suggest you speak with one of our qualified attorneys in our Florida offices before taking action.

The divorce decree should be considered a final order, and thus, a target for an appeal. In your appeal you could present evidence of the hearing transcript, which would presumably show that you entered evidence showing a different figure for your gross income, and also, that you did not enter evidence of any agreement to a higher child support payment. You must be careful that you don’t inadvertently waive your right to appeal by showing, through your actions, that you agree with the order. Sometimes this inadvertent agreement can be done by actually complying with the order. A way around this would be to pay the child support amount you believe is correct, and put the difference in a trust account until the conclusion of the appeal. Some jurisdictions might not find the payment of court ordered child support an action that would waive an appeal. You will need to find out your jurisdiction’s position on the issue.

Nancy R. Shannon, a Nebraska native, is an Associate Attorney in the Omaha, Nebraska office of Cordell & Cordell, P.C. She is licensed in the state of Nebraska where her primary practice is exclusively in the area of domestic relations. Ms. Shannon received her Bachelor of Arts degree from Doane College and her Juris Doctor from University of Nebraska – Lincoln, where she was a finalist in a Moot court competition and active in Client Counseling activities.

Question: 

My wife had some premarital money that we used to buy our first house. It was 20% of the value of that house. Is she entitled to any of that money back?

Answer:

Probably not – at least, not without an expert to trace the premarital share, if any, which could cost more than the share itself.

Even if money is arguable premarital, one spouse will raise three arguments to take a share of it when the couple divorce:

1. The property is comingled. Commingled property is assets and debts that were nonmarital but which were traded in to acquire new property during the marriage, repaired or enhanced during the marriage with marital funds, or, in some states, treated as marital property by written agreement or use during the marriage. A good example is a classic car purchased as a bachelor that you remodeled during your marriage with money you earned at work and deposited into a joint bank account. The statutes and case law in your state will dictate the extent, if any, your court will separate the marital from the nonmarital components of the property. Some courts refuse to do any separating, reasoning that the nonmarital property lost its status forever as soon as marital property mixed with it. Other courts will attempt separate valuations if the evidence presented is sufficient. A skilled attorney and expert testimony from an appraiser are essential here. The valuation is more difficult if the period of time of the comingled status is lengthy or the circumstances in which the property became comingled are complex. Do a cost-benefit analysis with your attorney to determine whether the fees you spend to prove the separate, nonmarital valuation are worth the anticipated value you will retain.

2. The property appreciated during the marriage. Appreciation is the property’s increase in value. During the marriage, the appreciation may be passive or active. Passive appreciation is the increase in value due to the surrounding circumstances, not your conduct. Active appreciation, on the other hand, is the increase in value due to your contribution, such as remodeling, reinvesting, and so forth. In most states, passive appreciation is not marital property. However, active appreciation due to one or both spouse’s involvement during the marriage, financial or otherwise, is. For example, in Reeves v Reeves, 226 Mich App 490; 575 NW2d 1 (1997), the Michigan Court of Appeals held that real estate equity that accumulated before the parties’ marriage in a home and several rental properties the husband owned was the husband’s nonmarital property because he had supplied the down payment and the mortgage payments, but the real estate equity that accrued during the marriage was marital property subject to division because it was attributable to the parties’ use, remodeling and management during the marriage. In addition, the entire equity of a rental property the husband purchased prior to the marriage was his nonmarital property because the appreciation was “wholly passive,” due to neither his nor his wife’s activities during the marriage.

3. The property is invadable. Invadable property is one spouse’s property the court nonetheless divides because the facts and circumstances of the case, as applied to the law for invasion, justify division. Each state has a different invasion law, so be sure to research the laws in your state to determine what, if any, invasion will occur in your case. In general, however, the laws allow invasion if the other spouse “needs” a share of the property due to an inequitable division of marital property or other financially dire circumstances and/or the spouse contributed to the property’s acquisition, use or maintenance, such as by helping to remodel it.  

This is only general information. Please discuss your case with an attorney in your area immediately for legal advice. I am a Michigan attorney and cannot give you advice for your case or the laws in your state, Minnesota. Do not rely on this answer as establishing an attorney-client relationship. Thank you for submitting a question to Cordell & Cordell, P.C.

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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