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I
INTRODUCTION
When couples who have a boat get divorced, they often face two questions: 1) who owns it?; and, 2) if it is jointly owned, how much is it worth? Other issues also can arise, especially if a pre- or postnuptial agreement exists, a third party (such as the government, a lender, or a repairman) asserts a lien, or the divorce occurs in the context of a bankruptcy.1
Somewhat surprisingly, previous commentators have all but overlooked these subjects.2 Accordingly, this article collects and discusses the existing case law.3 Of course, the U.S. Supreme Court's 2015 decision legalizing gay marriage4 only increases the chances of a lawyer becoming involved in a "boat divorce" case.
It is important to note that every state has its own body of family law and no two states' laws are exactly the same. Thus, this article provides only a birds-eye view of the topic and should be regarded merely as a primer.5
It also is worth mentioning that divorces, which by their nature tend to be acrimonious affairs, frequently become even more heated when a boat is involved. This is because one spouse usually has much stronger feelings for the vessel than the other spouse, which allows the latter to use these sentiments as a weapon.6
II
OWNERSHIP
A. Boats Acquired Before Marriage
Generally speaking, assets that a spouse brings into a marriage are considered "non-marital." Thus, in the event of a divorce, the other spouse has no claim to them. Boats are no different-if a spouse owned it before the marriage, it will remain a non-marital asset unless that spouse has made it, either intentionally or inadvertently, a marital asset.7 To the extent that marital funds are used to maintain or improve the vessel, the non-owning spouse normally will receive a credit and may even be entitled to a ruling that the boat has become a marital asset.8
In Marriage of Johnston,9 the wife claimed she was entitled to one-half of a boat. The Montana Supreme Court disagreed:
[T]he boat was acquired prior to Ellen and Stanley's second marriage. Nothing in the record indicates that Ellen contributed in any way to an increase in value of... the boat. Therefore, [it] is not an asset of the marital estate .......