All the divorce laws are still wrong. Nothing has changed in the past 90 days. Only two people responded to my last post, and both basically said “Ketan, you are right.” I’m 2-0.

The softball issues are over. Remember, I’m trying to point out black holes in how things operate within our family law world.

After reading this next post, you can click here to send me your comments and change my mind.

Equitable Distribution is up next.

You’ll say: “We have some of the best laws out there on how to divide up property. It’s just a math problem.”

I’ll say: “If you really know math, let’s integrate Newtonian calculus in our spreadsheets.” Just kidding.

I’ll really say: “You’re wrong on many accounts. Here are two of the biggest and easiest ones.”

Right now, our Equitable Distribution statute allows the court to:

Use account statements to determine what is marital and separate property;
Use math (or experts, if you don’t know how to use Excel) to somehow figure out divisible property;
Make a party pay or transfer money or assets to another (unless it’s separate property), including a non-voluntary title transfer under Rule 70;
Use math to award a higher percentage of marital and divisible property to one party;
Figure out tax impacts;
Stop people from dissipating assets;
Stop someone from encumbering or selling property by initiating a Lis Pendens.
A bunch of other stuff.

That is a ton of power for judges. Almost limitless. Therein lies the problem.

Our laws are wrong. There should be absolutely no debate that a judge, in a temporary or permanent order, can force the sale of anything, including real property. Whoever made up that rule has created this ridiculous niche of a power vacuum despite all the other authority given to judges. Let’s stop the insanity and just let judges do whatever they want without shackling their ability to conclude a case.

There is no harm. Let’s say it’s marital property . . . great! Here’s what requiring sale does:

Eliminates or reduces the need for an expert report;
Moves the case along;
Reduces the arguments about who gets credits for payments;
Reduces the chance that the housing market tanks;
And here’s the key: allows one party to buy out the other’s interest sooner rather than later.

Let’s say it’s mixed or separate property. The solution: The burden is on the party showing the asset is separate to prove a mixed or separate component. If that party meets the burden, the judge can’t sell the piece of property.

I can already hear your wheels turning: “Ketan, even if you say a house is separate property, it’s all mixed! What about the mortgage payments, property taxes, upkeep, etc.? This is an impossible standard.”

Wrong. It’s not mixed. Paydown of the separate mortgage is a distributional factor. Payment of property taxes and household expenses doesn’t convert an asset to marital property. It’s just another distributional factor. The only thing that converts property to marital (or mixed) is improvements during the marriage, not maintenance. Otherwise, it’s separate.

I’m open to being wrong about this. Prove it here.

Second, and easier point: unequal distribution of marital and divisible property. Everyone wants to argue for a percentage of the marital and divisible estate. There’s no reason to eliminate the judge’s ability to award an unequal percentage. Instead, our laws are wrong in that judges should specifically be allowed to award extra “dollars” to a spouse without having to calculate a percentage! Why anyone thinks a percentage is better than “dollars” is beyond me. By limiting judges to a “percentage,” you’re creating one glaring problem: the right to appeal if the judge makes a clerical/mathematical error.

So, I’m sure someone will say, “Look at Barlowe (113 N.C.App. 797). There’s no percentage there.” That court said:

“In this case, the trial court did not articulate in its judgment the percentage of the division of the marital property that would be distributed to each party. Although such a statement in the judgment would assist this Court in reviewing the trial court’s exercise of its discretion, it is not necessary when, as in this case, we are able to determine from the judgment the percentages of marital property actually awarded to each party.”

But why? Why would a percentage assist the court in reviewing anything? That literally should not mathematically or logically matter in any form or fashion. It’s just adherence to precedent that needs to be deemed silly.

Look, judges are going to do whatever they want to do to arrive at what they perceive is a “fair” result. Let them do that by fixing the laws. Unequal Distribution should mean whatever “percent” or “dollar amount” is fair to that judge.

Easy fix. Simply address the issues above. I’m probably right about all the things above. Just in case I’m not, change my mind or support my cause by clicking here.

November 10, 2021/by FamilyLaw