Transmutation and Converting Separate Property to Marital Property

One of the basic theories in equitable distribution and divorce litigation is that of transmutation. Transmutation theory holds that by their actions, the parties are able to modify the status of the property they own from separate property to marital property. In a recent decision, Fehring v. Fehring, 58 A.D.3d 1061 (3rd Dept. 2009), the Appellate Division, Third Department, has provided a perfect illustration of how transmutation may occur.

Parties were married in 1990. In August of 2005, the husband received $50,000 insurance payment. The money was related to his personal injuries and, therefore, would be initially classified as his separate property. Plaintiff deposited check in brokerage account held and used jointly by the parties. In January 2006, husband used $50,000 from account to purchase real property. The court held that transferring separate property assets into a joint account raises rebutable presumption that funds are marital property subject to equitable distribution. Rosenkranse v. Rosenkranse, 290 A.D.2d 685, 686 (3rd Dept. 2002). Presumption may be rebutted by evidence that such deposits were made as matter of convenience with no intention of creating beneficial interest. See, Chamberlain v. Chamberlain, 24 AD3d 589, 593 (2nd Dept. 2005). In Fehring, account was used by both parties for items such as credit card bills. The Appellate Division held that the husband failed to rebut presumption of marital property given commingling of funds. It held that the lower court providently exercised discretion in distributing equally the value of interest in real property purchased with funds held in joint account.

If you are contemplating divorce, be careful to avoid taking any action that converts your separate property to marital property. Once transmutation takes place, it is highly unlikely that you would be able to change the property’s status back to separate property, even with a lawyer’s assistance.

Child Support Calculation and Income Tax Refunds

In general, the Child Support Standards Act includes all of the parties’ income for child support calculations, subject to appropriate child support limits and deductions. What happens in the situation when a party is receiving a tax refund for teh taxes paid during the previous year? In Shelby T. v. Michael L., 2009 NY Slip Op 29075 (Fam. Ct. Clinton Co. 2009), Judge Lawliss overturned the support magistrate’s decision which included the tax refund as income in the child support calculation. The court held that since the party obligated to pay child support receives a tax refund on the taxes paid in 2008, in 2009, if the court were to include the tax refund in the child support calculation, then the money earned, and taxed, in 2008, would count as income for child support purposes once again in 2009. Clearly, that was not the result contemplated by the Child Support Standards Act.

If engaged in child support litigation, a lawyer must make sure that his client’s income is counted only once and that the client receives all applicable deductions and variances.