Can I pay an Equalizing Payment in Installment Payments?

When using other means of distributing marital assets, they must be within reason.

When parties divorce, the court will divide your marital assets equally. Usually, this ends up with one party paying the other party an equalizing payment. This equalizing payment balances out your marital assets and liabilities. For an easy example of how this works let’s say the Wife has $100,000.00 in her checking account and the Husband has $50,000.00 in his checking account. In order to equalize the marital assets, the Wife in this scenario would pay the Husband an equalizing payment of $25,000.00. The parties would end up with a total of $75,000.00 each. This is a very basic example and most cases can be often have several assets and liabilities that need to be balanced out before an equalizing payment can be determined. There can also be non-marital assets that come into play as well.

But, what happens if the only asset is a marital home that has equity and one party does not want to sell the home to pay the other party their fair share? The Second District Court of Appeal recently dealt with this issue in Nance v. Nance. The parties in Nance owned a marital home that had $50,000.00 in equity. The Husband wanted to keep the home because he inherited it, but the Wife naturally wanted her $25,000.00 share as quickly as possible. The general magistrate ordered the Husband to pay $100.00 a month towards the equalizing payment. At that rate, the Husband would be paying the Wife monthly payments that lasted well over 20 years. The appellate court found that the payment plan authorized by the trial court, which required the Wife to wait over twenty years to receive her fair share of the marital assets, was patently unreasonable.

The appellate court reversed the trial court’s ruling in Nance and went on to state.

On remand, the trial court shall reconsider the award of this asset in light of the other available options, including having the Husband obtain a mortgage or line of credit to pay the Wife, requiring the Husband to sell the home to pay the Wife, or reducing the amount to judgment so the Wife may collect against the Husband’s other assets, if there are any. We also caution that if the trial court elects to refashion the payment plan on remand, it must consider whether to impose interest payable to the Wife on the unpaid balance. (noting that the wife had a right to statutory interest on the equalizing payment that arose as of the date of the judgment). it must consider whether to impose a lien on the home in favor of the Wife for the amount due from the Husband and it should retain jurisdiction over any repayment provisions to account for any future change in circumstances.”

Following the rule of law in Nance, yes, the court may order an equalizing payment be paid in installment payments. However, the payments must be reasonable and a party should not have to wait years to receive their interest in the marital assets. In fashioning arguments before the court or drafting settlement agreements, your family law attorney should take into consideration all equitable remedies available to you, in order for you to receive a fair settlement as quickly as possible.

If you have any questions regarding marital assets or require legal assistance in other areas of Family Law you may always contact Damien McKinney of The McKinney Law Group to discuss your case further. He can be reached by phone at 813-428-3400 or by e-mail at contact@themckinneylawgroup.com.

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