How does my Rhode Island Divorce Judge determine if something is a pre-marital asset and why is that important?
It is perhaps easiest to answer your second question first. The nature or type of asset that is presented for the judge's consideration is important.
Why? Certain types of assets may not fall within what is referred to as the "marital estate." Rhode Island Domestic Relations law provides that the family court judge has the power to make an equitable distribution of "the marital estate." Assets that are determined by the judge to be pre-marital are not themselves part of the marital estate and therefore are not subject to division by the court. They are considered the property of the person who owned the asset prior to the marriage.
The family court judge will determine if the particular asset before him or her is a pre-marital asset based upon the factors surrounding the asset. Each judge will use his or her discretion to consider questions similar to these:
- Who owned the asset prior to the marriage?
- Does the other party contest that the asset is pre-marital?
- What documents exist to show ownership prior to the marriage?
- What kind of asset is it (i.e. vehicle, piano, painting)?
- How was the asset used during the course of marriage?
- Where was the asset kept during the course of the marriage?
- Was the asset kept completely separate and apart from the marital estate?
- Did both spouses have the beneficial use and enjoyment of the asset during the marriage?
- Were there any discussions between the parties or representations made by the party now claiming it is pre-marital either immediately before of during the marriage that related to the asset? What were the substance of those discussions or representations?
- Did the asset appreciate during the course of the marriage?
- Were any marital monies or other marital assets used for the maintenance, storage, upkeep or improvement of the asset during the course of the marriage?
- Is the asset insured, and if so, who is the policy holder and who are the beneficiaries?
- If the asset is insured, were any marital assets used to pay the insurance premiums?
- What is the value of the asset?
- How long have the parties been married?
There are countless questions a Rhode Island family court judge may weigh in considering whether an asset is pre-marital or not. The answers to these questions and the level of proof that can be offered in support of those answers will help the judge make a determination as to whether the asset is truly pre-marital.
It is unwise for a party in any divorce to assume that simply because he or she owned an asset prior to the marriage that it is automatically pre-marital.
The reason for this is that there are other principles of law that exist that set forth that actions taken by either parties regarding a pre-marital asset can easily and even accidentally convert it into a marital asset.
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