Dear Moneyist,
My husband of 21 years is expecting an inheritance payout in the next month or two. He wants to use the money to pay off the mortgage on our home. I am familiar with “co-mingling” and am sure he is as well. If the money is not co-mingled, will I be required to pay him half of the amount used to pay off the mortgage if we divorce before the end of the year? If so, is there a set amount of time that has to pass from the time the mortgage is paid until we divorce for me to not be required to repay him?
Wife in Ohio
Dear Wife,
Being married for 21 years is quite an achievement. I’m sorry to hear that it has come to this. Or it might come to this. You’re correct. Inheritance is not considered marital property in Ohio, so the only way for it to become part of your community property would be to commingle it in some way. That would, in theory, include renovations on a home or paying off a mortgage. Your husband could still prove that the money came directly from his inheritance, assuming he had a good lawyer.
In that case, the judge would deem the inheritance as separate property. There are many divorce cases in Ohio that have quoted this salient piece of the law: “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.” So proceed with caution, if you intend on staying in a marriage for financial reasons, particularly if it is an unhappy one.
Don’t miss: My father left his home to his kids — my stepmother sold it for $1 million
I offer up this juicy story: In 1996, a California woman won $1.3 million in the lottery and filed for divorce 11 days later. She didn’t tell her husband about her windfall, and two years later her husband found out all about it and sued her. Superior Court Judge Richard Denner ruled did not appreciate her shenanigans and awarded her husband all of her winnings. If a judge suspected you were planning to divorce when your husband made these payments, your plan could also backfire. Any good divorce lawyer would balk if he saw such payments prior to a divorce.
Also read: Will my brother’s $300,000 debt to our mother die with her?
Not everyone agrees that your husband paying off your mortgage is a problem. “It will likely be water under the bridge, unless he could really prove you orchestrated the depletion of his separate property,” says Randy Kessler, an Atlanta-based lawyer and author of “Divorce: Protect Yourself, Your Kids, and Your Future.” Kessler doesn’t advise against it. “You’d be in a better position than if the money was still in his separate account.” Again, my caveat: It may not go your way.
Intention counts as much as timing. Your husband might be the nicest guy in the world. Or he may be someone who has treated you very badly over the years. You may have given up years of peak earning potential to raise a family. Or, perhaps, you have both had your fair share of good and bad behavior. I will refrain from judging, given that I don’t know the circumstances, and leave the soul-searching up to you. Waiting for him to spend his inheritance, however, seems opportunistic.
And sooner or later that sort of double-dealing tends to catch up.
Do you have questions about inheritance, tipping, weddings, family feuds, friends or any tricky issues relating to manners and money? Send them to MarketWatch’s Moneyist and please include the state where you live (no full names will be used).
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Hello there, MarketWatchers. Check out the Moneyist Facebook group, where we look for answers to life’s thorniest money issues. Readers write in to me with all sorts of dilemmas: inheritance, wills, divorce, tipping, gifting. I often talk to lawyers, accountants, financial advisers and other experts, in addition to offering my own thoughts. I receive more letters than I could ever answer, so I’ll be bringing all of that guidance — including some you might not see in these columns — to this group. Post your questions, tell me what you want to know more about, or weigh in on the latest Moneyist columns.