Tuesday, September 27, 2005

Case Law Development: Trying Not to Split up the Family Farm

Courts in agricultural states are reluctant to split up family farms upon divorce.  Here’s yet another example of a family farm divorce from the Court of Appeals in Nebraska.  The court, while willing to recognize Wife’s contribution to Husband’s farm, was unwilling to find that the farm had become marital property because of that contribution.  The case is interesting from a litigation perspective in that the court relied on Husband’s will (Husband was still alive) as evidence of the couple’s understanding of their ownership interests in the property.  As well, the couple had executed an antenuptial agreement protecting Husband’s property interest in the farm, yet they rescinded the agreement during the marriage.  The court held that rescinding the agreement did not act to transmute separate property into marital property.

Nygren v. Nygren, 14 Neb. App. 1; 2005 Neb. App. LEXIS 227 (September 20, 2005)
Opinion on the web at http://court.nol.org/opinions/2005/september/sept20/a03-1042.htm (Last visited September 27, 2005 bgf)

For some more perspectives on farm divorces, see John S. Slowiaczek & David A. Domina, The Equitable Distribution of Farms, 18 J. Am. Acad. Matrimonial Law. 357 (2003) (“A farm that has passed from generation to generation is not just an asset to be divided but a way of life. Divorce directly challenges the ability of both spouses to continue that lifestyle and to preserve the farm for the next generation. Current equitable distribution policies may tend to overly protect the farmer at a significant cost to the farmer's spouse.”)

http://lawprofessors.typepad.com/family_law/2005/09/case_law_develo_38.html

Property Division | Permalink