How Court Treats Post Separation Payments, Part 2
Say that you provided funds, checks, cash, or other payments to your ex since separation. You have a claim pending for equitable distribution, which seeks to divide your marital property. But court is slow. It can take some time for your case to be reached. When it is, how should the court treat those payments you made? Were they gifts, or were they something the court ought to consider in equitable distribution?
In the previous installment, we talked about Cobb v. Cobb. There, Plaintiff paid roughly $45,000 to Defendant after separation. That money was in addition to sums paid to Defendant for child support. This means that there was no obligation to give Defendant that $45,000. The trial court treated that amount as an advance on the distribution of the marital estate. Defendant appealed and argued that it was error for the trial court to find that the $45,000 was an advance when there was no written agreement that it was such, and when the trial court did not inquire to the purpose of the payments.
However, one important lesson we learned was that in Cobb there were no orders for post-separation support, alimony, or child support. Therefore, there was no obligation to pay the $45,000 to defendant, and thus, it was an advance of the distribution of marital property. What if there aren’t any orders for PSS, alimony, or child support, but there are pending claims? Another case, Miller v. Miller, might apply. There, a husband paid a sum of $335,032 to wife after separation. Since there were pending claims for PSS and alimony, the court then determined what the PSS obligation was. They decided on $4,700 a month, totaling $178,600 for the applicable period. You might see what the court did next; the court subtracted the $178,600 from $335,032 to determine what was paid to wife in excess.
The important lesson to draw away from Miller is that a pending claim for PSS and alimony is a bucket that post separation payments can be sorted into. Since the husband in Miller paid in excess, the remainder was applied to equitable distribution and the pending alimony award (if any).
Again though, every case hinges on its own fact pattern. Those facts, however insignificant they may seem to you, may drastically change the outcome. Speak to a family law specialist to determine what your outcomes likely would be.