If you are getting divorced in Rhode Island, you need to know what property you should get to keep and what you have to split with your spouse. You may also be wondering who will be responsible for the debts. Here are the basics of property division at divorce.
When your marriage is ending, it is usually worth the effort to work with your spouse on a marital settlement agreement (MSA) – a written document that tells the court how you have agreed to divide your property (and deal with issues involving your children). If you can’t work with your spouse to come up with an MSA, or if you've resolved some issues but there are certain assets that are in dispute, then the court will distribute the property for you based on a system called equitable division.
Equitable division means that the property will be split between spouses in a way that is fair. The court decides what’s equitable, or fair, based on a set of factors designed to show the complete picture of how each of you contributed to the marriage (and how you may have harmed it) and what each spouse will need to move forward after divorce. The division does not have to be equal to be fair.
All Marital Property will be Divided
Before the court can divide your property, it needs to know which property belongs to the marriage, which belongs to you or your spouse separately, and how much there is of each. Marital property is property acquired or earned during the marriage. Property used for the benefit of the marriage or shared with the other spouse, even if it started out as separate property, may also be considered marital property. All the marital property must be divided between the spouses when the marriage ends.
Generally, non-marital property is property that belonged only to one spouse before marriage, including gifts that were given only to one spouse or an inheritance upon the death of a relative. In Rhode Island, the court could include your non-marital property in the division, but only under certain circumstances.
If the property was yours before marriage and you have not transferred it to a joint account or otherwise commingled it with another marital asset, then it will remain in your hands after divorce. Likewise, you get to keep any gift or inheritance you received during marriage. However, if the property you owned before marriage increases in value because of efforts made during marriage, then the amount of that increase is marital property and may be split between you and your spouse. Also, any income derived from your property during marriage is also marital property and subject to division.
Division of Debt
The most common types of property divided at divorce are real property like the family home, personal property like jewelry, and intangible property like income, dividends, and benefits. You must also assign all of your marital debt. Just as is true with property, before dividing a debt the judge will have to characterize it as either marital or non-marital based on when it was acquired, who acquired it, and how it was used.
For instance, imagine that your spouse runs up a high credit card debt by making foolish stock transactions during the marriage. If that were the extent of the problem, you might be on the hook to pay at least part of this debt because it was acquired during marriage. On the other hand, you might not have to share this debt burden if as a result of the bad investments, your spouse also wiped out most of a marital investment account. In this second scenario, although the debt occurred during the marriage, it was caused by one spouse who wasted marital assets in the process. Whether a spouse wasted marital property is one of the factors the court looks to in dividing all of your marital property, including your debt.
Factors Considered in Dividing Property
The court must consider the following factors when dividing the marital property and deciding whether any non-marital property should be included:
- the length of marriage
- the conduct of the spouses during marriage
- contributions to the acquisition, preservation, and appreciation in value of property
- contributions and services of either spouse as a homemaker
- the health and age of the spouses
- each spouse’s income
- each spouse’s occupation and employability
- each spouse’s opportunity for future acquisition of capital assets and income
- the contribution by one spouse to the education, training, licensure, business, or increased earning power of the other spouse
- the best interests of the children and need of the custodial parent to own or occupy the marital home
- a spouse’s wasting of assets or any transfer or encumbrance of assets made in contemplation of divorce, and
- any factor which the court shall expressly find to be just and proper.
Although Rhode Island is a no-fault state, the judge can still consider bad behavior like an affair or abuse during the marriage when dividing the spouses’ property. Evidence of fault could shift the distribution of property, sometimes significantly, in the innocent spouse’s favor. For example, in one Rhode Island case (cited below) the court gave the wife 80% of the marital property where her husband was abusive and had extramarital affairs. Consequently, a spouse who causes the marriage to fail may end up paying for their infidelity or abuse, if such a distribution would be just and proper in the court's opinion.
Property Divided Before Alimony Awarded
Alimony is a payment from one spouse to the other to help the recipient spouse become financially independent and self-sufficient. The court divides property first and then will evaluate your need for support. The court has the option to give you more of the marital property or some of the non-marital property instead of alimony.
The court determines the amount of alimony due based on many of the same factors used above to divide property, but it also looks at situations where financial independence might be particularly difficult to achieve. It could be that you are the primary caregiver to a young or sick child, or you may have taken substantial time off of work to stay home with your children, among other things. The amount and duration of alimony the judge orders can attempt to meet these additional needs, but ultimately, any order for alimony must be just and mindful of the supporting spouse’s ability to pay.
You can read the law on division of property and alimony in the Rhode Island General Laws, Sections 15-5-16 and 15-5-16.1. For more on how one spouse was held responsible for running up credit-card debt while making poor investments, see the case Koutroumanos v. Tzeremes 865 A. 2d 1091, 1095 (RI S.Ct. 2005). The case where the court split the marital property 80/20 in light of the husband’s abuse and affairs, is DeAngelis v. DeAngelis, 923 A.2d 1274 (RI S.Ct. 2007).