What if I don’t like how the court divided the property in my divorce? Can I appeal it?
You can try and appeal the courts division of your property in a divorce settlement but the appeals court will have a certain standard that they will use when reviewing the trial court’s decision. The appellate court is going to review the court’s decision by using an abuse of discretion standard. What this means is that the appellate court will review the case and make sure there was sufficient evidence for the trial court to base its division of property on. Then, based on that evidence, the appellate court will decide if the trial court’s division was reasonable. If the trial court can show that its decision is based on meaningful and firm evidence, then the appellate court will not overrule the trial court’s division of property.
In my divorce, the court did not divide the property equally, is this fair?
Community property does not have to be divided equally in a trial court’s decision. The trial court can consider factors such as; each party’s earning capacity, abilities, education, business opportunities, physical condition, financial condition, age, size of separate estates, and any future need for support that either spouse may have. The court will evaluate these factors, along with the evidence of each case, to determine a fair division of the property.
For example, in O’Carolan v. Hopper, the appeals court did not agree with a trial court’s division of property and allowed for a new property division. The wife, in this case, had a severe brain malformation. In the divorce, the wife was only awarded spousal support, while the husband had a greater income and more business opportunities than she did. The appellate court decided that the division of property that the trial court rendered was “manifestly unfair”. They allowed for the case to be reviewed again because the division of property that the trial court ordered left the wife vulnerable financially.
If any of the factors listed above applies to you, and the court did not consider them when making the property division in your divorce, then you may be able to appeal it. Your attorney will need to be able to point to specific points of evidence that proves that the division is unreasonable and unfair.
How is tax debt treated in the division of property?
In Cole v. Cole, the appellate court concluded that tax liability should be considered in order to make a fair division of the community estate. The case of Munai v. Munai is an example of how the court handled $49,000 of debt to the IRS. The husband and wife had been separated for fifteen years when the divorce was finally brought before the court. The trial court awarded the husband all the property that he had acquired in those fifteen years and that he was liable for the $49,000 tax debt. The wife was only given $1,000 from the husband and argued that she should have received more of a share in the husband’s property, even though they had been separated for fifteen years. The wife argued that the trial court should not have considered the tax liability when they divided the community property. However, the court determined that the trial court was correct by doing this because the husband was in the best position to pay the tax liability.
The appellate court concluded that it was reasonable for the trial court to award each party their own assets and debts that they had acquired separately in their fifteen-year separation. Because of the conclusion in Cole v. Cole, tax liability will be considered when making a division of the community estate.