If all pre-service earnings are community property and all post-service earnings are separate property, the timing of service of divorce papers can be a significant factor in how assets are ultimately divided. For example, if a husband cashes his paycheck and purchases a million-dollar lottery ticket with one dollar of his earnings one day before he files and serves divorce papers on his wife, the wife is entitled to half of the winnings. If the same husband had purchased the winning lottery ticket just a few days or weeks after service of the divorce papers using money he earned after filing and serving the divorce, the winnings are 100% husband’s.
Is this an extreme example? Of course. But it illustrates a point–the date of service matters. Here’s a real-life example to consider. Husband earns $300,000 per year. Of that, he is able to save $100,000 per year. If Husband waits six months to file and serve his divorce, the $50,000 earned and saved during that six months will belong 50% to Wife. If he had filed and served the divorce six months earlier, he would have $50,000 in the bank that would be his sole and separate property.
The take-away message of today’s post is this: If you are the higher-earning spouse, it pays to not delay filing and serving the divorce petition. If you are the lower-earning spouse, however, consider waiting a while; the pot of money to divide just may continue to grow while you wait.
Copyright © 2011 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.