Answers to Your Questions about Marital Assets & Debt

Answers to Your Questions about Marital Assets & Debt

Dear Jeff & Andrew:

I received a very nice inheritance following the loss of my father several years past. Approximately three years ago my husband said that he wanted to open a business and asked if he could use my money in order to do so. He always promised to pay it back but never did. Several friends of ours are aware of the loan but there is nothing in writing.

My husband’s business has failed, our credit is destroyed and my inheritance is gone. Now my husband said he wants to end the marriage and has completely ignored me when I question him about repaying the money. What can I do?

You can hire a lawyer, fast. While Ohio law does protect your inheritance, the situation becomes next to impossible when the money is gone. The court may find that your husband borrowed the money from you and that he has an obligation to repay that money. Is that a foregone conclusion? Not necessarily.

The fact that mutual friends are aware of the loan may help your case. Even in the absence of a written document, the court has the power to order your husband to make good on his promise to pay you back. However, the judge may also say that you knew the risks and the loss is yours to share. If your husband is ignoring your requests now, it is time to see an attorney to determine how best to proceed in order to protect yourself.

Learn about Pre-and Post-Marital agreements here.

Dear Jeff & Andrew:

When my wife and I were divorced, we worked out a pretty fair settlement. She was given 100% of the ownership in a small business that had just recently been started. It probably wasn’t worth anything back then and may actually have been in debt. I was told that I could have the company but honestly didn’t want to share in the debt and it was really a business that she was going to run.

Six years have now gone by and I have excellent information that she has sold her interest in the business to a partner who has been working with her for the past two or three years. I believe she may have actually received over $1.3 million and will now work as a consultant for the next couple of years.

Since the business was around when we got divorced, is it fair for me to get something now that she has made all of that money? I know that she was the one that took the risk of keeping the company going and I, therefore, wouldn’t ask for half of the money she just received. However, if I had not agreed to give it to her, I could be a fairly wealthy guy. Am I entitled to some reasonable percentage of the amount she got from the sale?

Nope. The division of assets and liabilities incident to a divorce is non-modifiable. When you agreed to give your wife 100% of the ownership of the business, you knew exactly what you were doing - getting out from under liability that was every bit as marital (and subject to division) as the business itself. She took the risk of maintaining the business and being responsible for the debt and she is therefore entitled to all of the reward.

Find more information on division of assets & liabilities here.

Dear Jeff & Andrew:

Although I have been divorced for several years, I recently learned that my ex-husband had a substantial amount of money hidden back at the time of our divorce. Can I take him back to court now? Am I entitled to any of the money that he hid during our case?

The law does allow parties to seek to set aside a divorce decree in a number of circumstances including fraud or misrepresentation. For the most part, a request to set aside the divorce decree needs to be filed within one year of the date the decree was filed. If you have been divorced for several years, you are certainly past that point. However, there may be a good argument that your case fits into an exception to the general rule if you just learned of the misconduct.

A key question that will be asked is whether or not you could have found his misconduct if you had taken proper steps to look back at the time of the divorce. All too often we see instances in which a person could have pretty easily found evidence of fraud but didn’t want to look. Sometimes a person is afraid that looking into financial records will anger their spouse; other times it is a desire to save divorce costs or simply a desire to end things quickly.

To determine whether there are any circumstances or facts in your case that would enable you to re-open the case, you are going to need to sit down and talk with a divorce lawyer. Before actually meeting with an attorney, it will be a good idea for you to gather copies of your final divorce papers and any other financial documents that may have been reviewed at the time of the divorce. Those papers should include the financial disclosure affidavit that was required to be filed by your husband.

Learn more about divorce modifications here.

Dear Jeff & Andrew:

I have been told that I can subpoena the financial records of my ex-wife’s live-in boyfriend if I file a motion to reduce child support. Are his financial records truly fair game even though he has not married my ex?

The rules of discovery are fairly broad and there may be circumstances under which issuing such a subpoena will be reasonable and appropriate. However, if the issue before the court is whether or not your child support should be reduced simply because you think he is helping her with some of her expenses, this is probably not one of those circumstances.

Let us assume that you ex-wife’s current boyfriend pays for some of her expenses. Let us go further and assume that he pays for some of the expenses associated with your children. While that may be relevant, it is probably not the ultimate fact upon which the court’s decision is going to hinge. If, however, your financial circumstances have changed for the worse and you are unable to provide for the children when they are with you, the court might find the issue relevant.

Obviously, this is not a black and white issue. You will probably need to meet with your lawyer to discuss the total circumstances before making a decision to proceed.

Wish to modify child support? Find information here.

Dear Jeff & Andrew:

My ex-husband has been out of work for several months. When he lost his job, he quit paying me child support and is now way behind on his obligation to pay two VISA accounts that were in our joint names. He was ordered to pay those accounts but he never took my name off of them.

I am now getting letters from the bank telling me that they will ruin my credit if I fail to make the monthly payments. Why is the bank bothering me when it was my husband who was ordered to make the payments? Without child support, I cannot possibly make those payments.

What can I do to protect myself from the bank? Also, why is my ex-husband allowed to sit around doing nothing and ignore paying me support? Obviously, he has figured out how to live without a job. He said there is nothing I can do about it because he has no income. How can that be true?

These are difficult and, given the economy, increasingly frequent questions. Joint credit card accounts are often allocated to one of the parties in a divorce. However, because the court cannot affect the rights of a third-party creditor (your credit card company), the divorce decree can merely specify that your ex is the one responsible for paying the bills. If he does not pay the obligation, your credit company still has the right to come after you for the balance. Then you, in turn, have to go back to court against him for violating the court order.

Many people in your shoes begin making the minimum monthly payment to preserve their credit. When you sue your ex, you will be asking the court to order him to reimburse you for those expenditures as well. The fact that your ex is unemployed does not absolve him of responsibility for paying the debt.

Similarly, his unemployment does not get him out of his child support obligation. Since his child support payments were most likely coming from a direct withholding out of his paycheck, the payments stopped when his paychecks stopped. Nevertheless, he still has the obligation to make the payments directly through the Child Support Enforcement Agency. Your first step should be to contact your caseworker at the agency to bring his non-payment to their attention. The agency has a number of tools that it can use to persuade a delinquent payer of support to pony up. If your ex hears that he may lose his driver’s license, he may begin making payments, even if they are only partial payments.

Your next step may be to take him to court for failing to pay support and failure to pay the credit card bills. Although he will claim that he has no money, you will have to show that he has the ability to pay his bills. The court will expect him to dip into savings and do whatever he can to support his children and take care of his obligations. Furthermore, the judge will evaluate whether or not he is doing everything reasonably necessary to find other employment. If he is unemployed through no fault of his own, the court may temporarily reduce the amount he is to pay you. Sometimes problems such as these require some very creative thinking.

"My Ex Won't Pay Child Support - Now What?"

Dear Jeff & Andrew:

My husband and I recently separated after 24 years of marriage. The main reason for our separation was financial. Bills came in and my husband ignored them causing us to lose our house, our cars and virtually everything else. Our credit is, to say the least, a real mess.

My husband and I are attempting to negotiate a separation agreement so that we may have a legal separation.

There are a couple of major creditors in my name only. My ex has verbally agreed to pay accounts for which he is responsible. I have been keeping all accounts in my name up to date but I do not know if this is enough to help me rebuild my credit rating. Is there something else I should do?

Court orders, whether based on the parties' agreement or not, cannot change your responsibility to a third party. In other words, although he may agree to pay bills in your name, creditors can come after you if he fails to make the payments. Although you can sue him for violating the agreement, it is your credit that will be hurt. Showing your creditor a copy of a Separation Agreement and court order that makes your husband responsible for the debt will elicit the same response every time: take it up with the Court.

However, if the bills he is now paying are in his name, there will certainly be a benefit to you if you are able to keep your bills current. Frankly, your credit is probably so bad right now that the impact on your rating should not be your first concern. You need to work with someone to help you understand financial planning and then work together to get your family finances in shape.

Dear Jeff & Andrew:

It looks like my marriage is going to be coming to an end. I cannot afford my house payment and I am concerned that I will not be able to afford the rent for other properties in our school district. I am currently employed and have worked off and on during the marriage. My other “job” is taking care of our children who are currently in high school. My husband has been the breadwinner and has saved a great deal of money. Even though the stock market is down, my husband said he is thinking of early retirement. If he retires and I get some share of the assets, I will still be unable to meet my expenses. Can he simply stop working and pay me nothing?

While your husband has the right to retire early, the court will not necessarily find that early retirement relieves him of his responsibility to provide support. While the court cannot force him to actually work, the court can order him to pay child support and spousal support based upon his previous earnings. Ohio law requires the court to look at each party’s earning ability (not just what they are earning at the time). Choosing an early retirement may not be the smartest move for your husband.

Questions about spousal support? Find information here.

Have questions about divorce, property division, child custody, or another related family law issue? We invite you to contact Grossman Law Offices at (614) 344-4311 to discuss your case with a Columbus divorce attorney.