Before giving up on divorce mediation it would behoove divorcing couples to manage their expectations for the distribution of assets in divorce by first gaining an understanding of how courts will be dividing assets in divorce. When a divorcing couple cannot reach a private agreement on how to divide and distribute the assets of their marital estate, a court will make that determination for them in accordance with their state’s laws. An asset division divorce, or one where there is property and assets to be divided—such as a long term union, can become swiftly acrimonious when there is a disagreement about what is fair. When the asset distribution in divorce is placed into the courts hands, one of the first things the court must do before distributing the assets of a marital estate is determining which property is separate from and part of the marital estate. Generally speaking, property is considered as separate from the marital estate when it was acquired before the marriage, received as a gift, excluded from the marital estate via a valid prenuptial agreement, or inherited. Property that is acquired during the marriage, then, is considered as part of the marital estate and is therefore assets in a divorce and subject to division and distribution by a court of competent jurisdiction.
Equitable distribution of assets in a divorce
State laws vary considerably on the specifics dividing assets in a divorce, but in general they are governed by the legal doctrines of “equitable distribution” or “community property”. A division of assets divorce is always by its very nature more stressful than an uncontested divorce with no asset division, regardless of whether it is a community property or equitable distribution divorce. Equitable distribution of asset division in divorce is the prevailing the standard used throughout the majority of the states, and requires a court to distribute the assets of the marital estate on the basis of “fairness”, typically without regard to marital misconduct or fault. A “fair” divorce distribution of assets is not necessarily an “equal” distribution, and will be determined based upon things like the age and health of each spouse, the existence of a valid prenuptial agreement, and the length of the marriage, among others. Ultimately, the court weighs the present and future impact of the distribution agreement of divorce assets on each spouse and then arrives at a decision based on what it feels is likely to produce the most sustainable and fair outcomes for each spouse. Normally, a person hires a strong NY divorce lawyer to represent him or her in court.
Community property states – Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin – decide asset distribution based upon an equal sharing of the marital estate, usually a 50/50 split. Like equitable distribution states, marital fault or misconduct is usually not taken into account. Unlike states like New York where an equitable distribution assets divorce takes place, these states do not always result in an fair outcome.
Whether your state conforms to the equitable distribution doctrine or the community property doctrine, splitting assets in divorce is always a determination as to the value of the assets must be made before they can divided and distributed in accordance with the law. In a divorce, splitting assets always seems to bring out the worst in couples and if a mediation is going to break down it is during this period or child custody. If communication breaks down then dividing marital assets will go to the courts for a fair and impartial division. Typically, the valuation process consists of establishing the valuation date and the dollar amount of each asset. In divorce assets division the valuation date is used to set the value and the dollar amount is used to quantify the asset’s value. Often times, there is disagreement between parties as to these details and the court will need to hear expert testimony in order to decide a proper valuation date and dollar amount.
Although courts in your state are empowered to decide asset distributions in divorce, they are only empowered to do so when you and your spouse cannot arrive at a private distribution agreement. Couples who wish to avoid the cost and emotional pain of lengthy legal proceedings should make a good faith attempt to reach an agreement with their spouse. This negotiation process can be facilitated by an attorney via mediation or arbitration so couples planning to divorce should seriously consider obtaining the services of an attorney who specializes in family law.
Call Julia Kabzan today. During a free no-obligatory consultation, he will be able to answer all of your questions regarding splitting your assets.