A Closer Look at Transmutation
The issue of transmutation has come up on this blog before, when we did a quick overview of how non-marital property can undergo transmutation to be considered marital property. This issue can be critical in cases of divorce, when assets are divided between spouses. Often, one spouse comes into the marriage with an asset (non-marital property) and when it comes time to divide assets in the divorce, the other spouse claims that the asset should now be considered marital property so they can get what they consider their fair share of it.
But determining transmutation is not black and white. The court must look at the evidence to decide. Today we’re going to look at the details of a specific case to better understand what type of evidence courts look for when considering transmutation.
The case in question is Brown v Odom, heard by the South Carolina Court of Appeals in May 2018. (PDF of case) Grady C Odom and Emily S Brown divorced after an 8-year marriage. In the divorce, a family court determined that a company founded by Odom before he and Emily married, Twin Oaks Villas (LLC), had transmuted into marital property over the course of the marriage. It was therefore subject to division in the divorce settlement. Odom disagreed with the lower court and appealed.
Producing Evidence for Transmutation
The SC Court of Appeals affirmed the family court’s decision, finding that the LLC did indeed transmute into marital property. In its decision, it cites previous cases to establish a basis for analysis:
“Nonmarital property may transmute into marital property if ‘[1] it becomes so commingled with marital property that it is no longer traceable, [2] is titled jointly, or [3] is used by the parties in support of the marriage or in some other way that establishes the parties’ intent to make it marital property’” (Wilburn v Wilburn, 2003)
and
“The spouse claiming transmutation must produce objective evidence showing that, during the marriage, the parties themselves regarded the property as the common property of the marriage.” (Jenkins v Jenkins, 2001)
Quoting directly from the decision, Brown provided the follow evidence of her involvement in the LLC, which included:
- “Loaning the entities [referring to both the LLC and a separate Corporation Odom had also founded before the marriage] over $200,000 during the marriage—including $25,000 to upgrade the LLC’s building’s telephone system and $17,400 to make noncritical repairs to the building;
- Assisting in obtaining loans, including a HUD loan, and refinancing loans for the entities;
- Consulting with architects and engineers to implement Department of Health and Environmental Control (DHEC) regulatory codes;
- Overseeing compliance with structural standards;
- Purchasing sheetrock and iron needed for DHEC building upgrades”
And more. In addition,
- Brown and her son testified that Odom introduced her as his partner and owner
- Brown testified that Odom had said he intended for the LLC to be marital property
- Brown testified she sometimes worked without pay
- Brown testified she sometimes invested money in the entities rather than her retirement accounts
Shifting Burden of Proof
It isn’t necessarily enough for a spouse to provide evidence that an asset has been treated and considered as marital property. The Court of Appeals again cites a previous case: “If the [spouse] presents evidence to show the property is marital, the burden shifts to the other spouse to present evidence to establish the property’s nonmarital character.’” (Wilburn v Wilburn, 2013)
However, Odom did not present evidence to refute Brown’s evidence. In fact, he didn’t even appear at trial, let alone call witnesses or present evidence that refuted his wife’s evidence. In short, the burden of proof was on him, but he didn’t make any case to show that the property had not transmuted.
Dividing the Assets
The family court divided up the assets equitably, and Brown was awarded her share of the LLC (along with her share of the Corporation and other assets) which she had put time and money into in support of the marriage.
The family court ordered a “constructive trust” for Brown to secure the $590,018 awarded to her in the split. A “constructive trust” is one that doesn’t actually exist, and has no trustee, but is a fiction that orders a person (in this case, Odom) who might otherwise be “unjustly enriched” to transfer property to another party (Brown).
Estate Planning and Protecting Assets
By planning ahead, you can avoid many problems that could arise later on, such as a battle over marital and non-marital assets. Whether you’re considering a pre-nuptial agreement, post-nuptial agreement, a trust, or other estate planning advice, contact the Gem McDowell Law Group in Mt. Pleasant today by calling 843-284-1021. Gem has over 25 years of experience and he and his associatess can solve problems and help you protect your assets.
Transmutation: When Non-Marital Property Becomes Marital Property
Consider this:
Sandra and James have been married for 25 years. Once they were married, she gave up her job to become a stay-at-home mom. When the kids were old enough, she began to work in her husband’s dental practice, which he established before they married, becoming an integral part of the business. If Sandra and James get divorced, does she deserve compensation for any part of the dental practice that she helped grow?
Marital And Non-Marital Property, And How Non-Marital Becomes Marital
Before answering that question, it’s important to understand the difference between marital and non-marital property. Marital property is property that belongs to the marriage, i.e., to both spouses. In a divorce, it is subject to equitable division by the court (if the couple has not come to an agreement about how to split up the property). A common example of marital property is a house that the couple purchases together during the marriage.
Non-martial property is owned by one spouse or the other, and is not considered to belong to the marriage. In a divorce, it will remain in the hands of its original owner. Examples of non-marital property include gifts made to one spouse only, inheritance, and assets that were brought into or existed before the marriage, such as cars, real estate, and investments, to name just a few examples. Property that was excluded through a pre- or post-nuptial agreement is also considered non-marital.
Although the law gives clear definitions of the two, the application becomes difficult in situations where non-marital property becomes marital property through the process of transmutation.
How Transmutation of Marital Property Happens
If non-marital property becomes “commingled” with marital property to the point that it can’t be distinguished, or it’s used by the spouses in support of the marriage, it can become marital property.
However, determining how much commingling is enough, or what use constitutes “support of the marriage” is not straightforward. The Supreme Court of South Carolina has heard a number of cases where application of the law has depended on how and when transmutation occurs.Here are three cases from the last few years as examples:
Case #1: Wife works in husband’s business and argues that it’s transmuted
Pittman v. Pittman (PDF), Feb. 2014
Gloria Pittman separated from husband Jetter Pittman after seven years together. Over the course of their marriage, she reduced her hours at her job as a nurse and instead spent more time working in her husband’s surveying business, until she was no longer eligible for health benefits or a retirement savings plan through her nursing job. Instead, she became an integral part of her husband’s business. When they divorced, she argued that the business, which her husband owned before coming into the marriage, had become marital property.
The Court agreed. A few key factors in the decision: the husband and wife agreed that she should essentially give up her nursing career to help with his business, the wife was involved in making major decisions regarding the business with her husband, and they structured her pay to benefit the two of them.
Case #2: Wife argues that husband’s inherited land is transmuted
Wilburn v. Wilburn (PDF), May 2013
Harriet and Paul Wilburn were married for over 30 years. They had a unique situation: he had a stroke in his mid-40s that left him partially paralyzed. He granted his wife power of attorney and she took control of some of his accounts. She later got breast cancer and then decided to seek divorce. In the split, she argued that a tract of land he inherited had transmuted and was marital property.
The Court disagreed. Although the Court found wife’s testimony that she had contributed to the management of the property to be credible, that wasn’t enough to establish transmutation. The Court also found that even though income from the land was used in support of the marriage, the property had not transmuted.
Case #3: Husband argues properties are non-marital
Conits v. Conits (PDF), Mar 2016
Peggy and Spiro Conits were married over 30 years before seeking divorce. He owned a number of properties prior to the marriage. She argued that the properties should be considered marital property.
The Court agreed. The income from a property he owned in the U.S. was used to support the marriage and to extinguish debts. He also owned a property in Greece, which the Court determined was marital property. In both cases, loans taken out on the properties were fully paid during the course of the marriage.
Keeping Marital and Non-Marital Separate
With the Court’s interpretation of what constitutes transmutation varying so widely between cases, it’s hard to know exactly what will and won’t qualify as transmutation. If you want to avoid transmutation of property, there are ways you can protect certain assets, for example, through a pre- or post-nuptial agreement.
For advice on protecting your assets, and on other issues of estate planning, contact estate planning attorney Gem McDowell at his Mount Pleasant office today. He can help you create a robust estate plan that takes care of your future needs and the needs of your whole family. Get in touch by calling (843) 284-1021 or by filling out this contact form online.