Division of Marital Property

Division of PropertyThe process to determine how to divide marital assets between parties can be, and often is, quite complex. It is not possible in this article to describe with particularity how various assets may be divided between parties in a divorce. However, there are some key points to bear in mind.

It is common during settlement, mediation, or trial for the parties’ marital assets to be equally, or nearly equally, divided between them. In preparation for meeting with an attorney, you should make a list of as many assets (cash assets, investments, personal property and real property, etc.) as you can with a value of $500 or more. You should attempt to determine the current values of all such assets, either by the actual figures which appear on bank statements or similar account information, existing appraisal values, and values found in newspapers or on the internet. You may want to wait to have property valued by an appraiser until you speak with an attorney. Your list should neither be made with, nor disclosed to, your spouse without the advice of an attorney. You should also attempt to determine the existence of any liens on property you identify. All documents evidencing title to property and which show the balance owed on any liens should be retained. Title may be shown by deed or other document (e.g. bank account statement) which list either or both parties as owner. Sometimes an other person or entity may also hold or share title. Property such as golf clubs, eye glasses, comic book collections, or other items which are personal to a particular party, are often considered property of that person without documentary evidence of title.

A property list should contain property that was given as a gift to one or both parties or through a will. With regard to inherited property and gifts, an effort should be made to recall and describe when and how it was received, and most importantly, to whom it was given. Parties occasionally agree that certain property acquired during marriage with marital funds will not be considered marital in the event of divorce. Prenuptial agreements operate that way although they are signed before the marriage.

Assets commonly divided in divorce cases can include retirement assets, such as 401ks, IRAs, pensions, survivor benefits, as well as other investments like stocks, bonds, mutual funds, real estate, funds held in whole life insurance policies, and business interests. A pension that has accumulated during a marriage can be divided between the parties because it was earned during the marriage. Time accrued for a pension owned by a party prior to the marriage, which continues to accrue for any period of time after the marriage, is often times divided between the parties with a value determined from the date of the marriage through the date of divorce. Such assets purchased by a parties’ work efforts after divorce or by monetary, or non-monetary, investment accumulated during the marriage, in most cases, are marital assets subject to being divided as a result of the divorce. Courts frequently must enter an order (usually referred to as a Qualified Domestic Relations Order or QDRO) requiring the entity managing the asset to divide it between the parties.

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