Consider acquiescing and split the inheritance 50/50. Litigation stress is a real thing and can really affect your health. This is coming from my 20 plus years as a lawyer. I used to do some divorce law but now I do mostly estate planning.
Commingling and traceability issues can be very costly in a contested divorce case. The case can drag on for years if you include appeals. Most cases settle but these are the types of cases that can go to trial and are very fact specific. Alternatively, consider settling at a reasonable discount. If you have joint children, consider an offer to give the money at issue directly to the children if adults or by funding 529 or UGMA accounts. Treat the inheritance as a generation skipping gift to children if it makes you feel better. A spouse might get on board with that option. A good lawyer or mediator will consider creative solutions like that during mediation. If you go to trial (e.g. the nuclear option), be ready for a war with forensic accountants and spending a small fortune on attorney fees.
Factors include how much money is at issue and the willingness of the parties to settle. If you are pushing for tracing of comingled separate property with marital property, get a good divorce lawyer. Here are some case references in Ohio:
R.C. 3105.171(A)(6)(b) provides: “The commingling of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separate property is not traceable.” Smith v. Smith, No. 98-A-0034, 1999 WL 1488950, at *3 (Ohio Ct. App. Oct. 15, 1999).
If separate property has been commingled with marital property, i.e., put together into a common fund, the party seeking to have an asset treated as separate property must also prove by a preponderance of the evidence that the property can be traced to its prior separate identity. Brown v. Brown (Ohio App. 8 Dist., 06-05-2014) 14 N.E.3d 404, 2014-Ohio-2402, appeal not allowed 140 Ohio St.3d 1507, 19 N.E.3d 923, 2014-Ohio-5098.
Traceability of separate property that has been commingled with marital property presents a question of fact in a divorce case; thus Court of Appeals must give deference to the trial court's findings, and the trial court's decision on the matter will not be reversed as against the manifest weight of the evidence when it is supported by competent, credible evidence. Wright v. Cramer (Ohio App. 2 Dist., 03-02-2018) 107 N.E.3d 836, 2018-Ohio-764.
The burden is on the spouse to show tracing.
Commingling and traceability issues can be very costly in a contested divorce case. The case can drag on for years if you include appeals. Most cases settle but these are the types of cases that can go to trial and are very fact specific. Alternatively, consider settling at a reasonable discount. If you have joint children, consider an offer to give the money at issue directly to the children if adults or by funding 529 or UGMA accounts. Treat the inheritance as a generation skipping gift to children if it makes you feel better. A spouse might get on board with that option. A good lawyer or mediator will consider creative solutions like that during mediation. If you go to trial (e.g. the nuclear option), be ready for a war with forensic accountants and spending a small fortune on attorney fees.
Factors include how much money is at issue and the willingness of the parties to settle. If you are pushing for tracing of comingled separate property with marital property, get a good divorce lawyer. Here are some case references in Ohio:
R.C. 3105.171(A)(6)(b) provides: “The commingling of separate property with other property of any type does not destroy the identity of the separate property as separate property, except when the separate property is not traceable.” Smith v. Smith, No. 98-A-0034, 1999 WL 1488950, at *3 (Ohio Ct. App. Oct. 15, 1999).
If separate property has been commingled with marital property, i.e., put together into a common fund, the party seeking to have an asset treated as separate property must also prove by a preponderance of the evidence that the property can be traced to its prior separate identity. Brown v. Brown (Ohio App. 8 Dist., 06-05-2014) 14 N.E.3d 404, 2014-Ohio-2402, appeal not allowed 140 Ohio St.3d 1507, 19 N.E.3d 923, 2014-Ohio-5098.
Traceability of separate property that has been commingled with marital property presents a question of fact in a divorce case; thus Court of Appeals must give deference to the trial court's findings, and the trial court's decision on the matter will not be reversed as against the manifest weight of the evidence when it is supported by competent, credible evidence. Wright v. Cramer (Ohio App. 2 Dist., 03-02-2018) 107 N.E.3d 836, 2018-Ohio-764.
The burden is on the spouse to show tracing.
Statistics: Posted by legalwriter1 — Thu Mar 14, 2024 8:08 am — Replies 39 — Views 4852