Shively v. Shively, Division of Marital Property, Post Separation Team Effort

Shively v. Shively,___S.W.3d___(Ky. App. 2007)

Ex-Wife appealed TC’s division of marital property, arguing that division was not in “just proportions,” as TC’s division of property earned between date of separation and date of decree was not equal. While working full-time for Brown & Williamson during marriage, Ex-Husband attended law school and Brown & Williamson paid his law-school tuition and expenses. In 2003, he began work at a law firm where B&W was his primary client while B&W closed its Louisville, KY offices to move out of state. Ex-Husband’s income drastically increased as a result of this work to over $500,000 in 2004. However, by the time of the trial, B&W’s move was nearly complete and Ex-Husband received very little income from this source and was building up a construction law practice. During the marriage and at the time of the trial, Ex-Wife was employed as a senior tax manager, earning approximately $115,000 annually. After the parties’ separation in October 2004, Ex-Wife discontinued contributions to utilities and mortgage payments on the marital residence, and both parties continued to share homemaker and parenting duties until the time of trial. TC equally divided property earned up to the date of separation; however, although it declared that the property earned between the date of separation and the date of decree was marital property, it allocated a substantially larger portion of this marital property to Ex-Husband. TC found that equal division of the property earned up to the date of separation would leave each party in good financial circumstances and that it was “just” to allow each party to keep the income earned after the date of separation and the assets purchased with that income.
Ex-Wife first contended to CA that unequal distribution of post-separation income and assets did not represent a division in “just proportions.” CA disagreed with Ex-Wife that post-separation assets must be divided in same proportion as pre-separation assets or divided equally. Citing Stallings v. Stallings, CA noted that making a division in “just proportions” requires TC to consider the factors of 403.190(1)(a)-(d), one factor of which requires consideration of the contribution of each spouse to the acquisition of the property. CA found that TC properly considered these factors in making its division, and found no error.
Ex-Wife also contended that TC failed to consider her contribution to Ex-Husband’s law degree when dividing the post-separation assets. CA noted that, although a professional degree is not marital property, it can be considered an asset of the marriage in determining the parties’ respective contributions when dividing marital property. CA held that TC appropriately considered Ex-Wife’s claim to contribution towards the law degree, and that TC properly rejected her claim, as Ex-Husband’s law school tuition was paid for by B&W, the degree was obtained without a break in his employment, he continued parenting duties while in law school, and Ex-Wife continued to advance her career during that time. TC’s division of property affirmed.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.