How do we divide the property? This is a common question when people start the divorce process. At this point in time, it is very difficult for me to answer. There are many factors that the court – and so I – must consider when fashioning a “fair and equitable” division of assets. These include, but are not limited to:
- length of marriage;
- fault in the breakdown of the marriage;
- how the property was acquired;
- how the property was maintained;
- age and health of the parties;
- sources of income;
- estates of the parties;
- liabilities and needs of the parties; and
- dissipation of assets.
It takes me (and I would imagine any attorney) quite a while to gather the facts needed to know and be able to weigh these factors to come up with a recommendation for my client. Some of this information can be provided by my client. Some is the result of obtaining and reviewing discovery. Not surprisingly, parties often disagree on some (or most) of these factors and it becomes necessary for me to assess the strength and weakness of each of the parties’ claims. None of the information I require to do this is available to me at the start of a case.
What I can do is address some common misconceptions about division of property they may have heard:
- Property is divided according to whose name is on the title or according to who actually paid for the asset (NOT TRUE);
- Property brought into the marriage by one party or inherited by one party is off limits to the other spouse (OFTEN NOT TRUE);
- Jointly held property means that each party gets 50% of it (NOT ALWAYS TRUE);
- Property held with other family members is separate property (OFTEN NOT TRUE);
- My husband/wife committed adultery, so I’m going to get everything (OFTEN NOT TRUE);
- My family contributed to or paid for an asset so it’s more mine than his/hers (NOT ALWAYS TRUE);
- Retirement accounts can’t be divided by the court (NOT TRUE);
- Money or property that was transferred out of a parties’ name is not part of marital estate (OFTEN NOT TRUE) and
- Debts are not divided like property division and belong to whoever incurred the debt (NOT TRUE).
It’s easy to say, “I want that” or “I think I deserve this.” It’s quite another to prove it should be so. Educating our clients on the law and factors behind property division helps gather relevant information and manage expectations for the best possible outcome.