righttread
|
property
| 1.
What is marital property? |
Marital
property is everything acquired during the marriage including debts. It
includes things like real estate, retirement, accounts, credit card bills
etc. The court has the power to divide any item that it finds to be
marital.
Certain things can be excluded from division such as gifts,
inheritances and property owned before the marriage. However, deciding
what can be divided, by the court or by agreement can be tricky. Property
otherwise "separate" might, under certain circumstances become "marital."
Also the court can take into consideration a person's separate property when
deciding how to divide what is marital. Our office is experienced in
assessing, what items are subject to division and what can be safely
excluded. We are more than happy to give you a detailed breakdown of these
divisions and steer you clear of pitfalls during our free initial
consultation.
Go to top
|
| 2.
How does the court divide marital property?
|
The law
directs the court to divide property equally unless an equal division
would be unfair. In reality fifty fifty splits are the exception since
so many different factors can come into play in determining what is
"fair." Our free case evaluation includes a breakdown of property division
specific to your situation.
Go to top
|
| 3.
How are debts divided? |
As in
the division of all marital property first the court must determine
whether the debt is marital. Most, if not all, debts will be marital in
nature unless the marriage is short term and one party entered the
marriage with a preexisting debt. If the debt is marital and therefore,
can be divided by the court, there are a number of ways to achieve its
division. Remember though the court is bound only by rules of fairness and
therefore no specific formula can be used.
The court may divide the debt
according to income, it may divide it equally (especially if spousal
support has divided the incomes equally), it may assign the debt to a
party who receives a tangible item associated with the debt (such as a big
screen TV or living room set), it may consider the debt so personal that
even though it is marital it nonetheless should be assigned to one party
rather than being divided (such as student loans, or a credit card bill
from a vacation with a girlfriend/boy friend) in these case the debt would
not be considered to have benefited the other party at all. For an
assessment of how debt will be assigned in a specific circumstance call us
for a free free case evaluation.
Go to top
|
| 4.
How is real estate divided? |
Assuming
it's marital there are only two alternatives. Either the court may order
the property sold and the proceeds/debt divided, or the property can be
awarded to one party. Typically if the parties cannot agree on the
property's disposition the court is left with little alternative but to
order it sold.
A few factors can weigh on the decision to award a
property, such as the existence of children, but for the most part absent
an agreement the court will have it sold.
If the court does award the
property other things must be considered. If there is equity in the home
(the value exceeds its indebtedness) the court could order the party
receiving the home to pay a portion of the equity to the other party. The
court may also order that the home be refinanced to remove the other party
from the property's obligation.
Go to top
|
| 5.
I owned my home before the marriage, can I keep it?
|
Generally any property, personal or real, owned prior to a marriage is
considered separate property and may not be divided by the court. However,
in certain circumstances a premarital asset can be converted to a marital.
In real estate the court may examine such things as whether the deed
and/or mortgage had the spouses name added to it or whether significant
improvement was made to the home. The conversion of a separate asset to a
marital asset takes into account far too many factors to list here. Our
free case evaluation can assist you in determining which if any assets may
be at risk for division.
Go to top
|
| 6.
Can my retirement be divided? |
Yes,
assuming it was acquired during the marriage the court is empowered to
divide it. Most retirement plans or accounts must be divided by what is
referred to as a "qualified domestic relations order" or qudro for short.
A quadro directs the plans administrator to divide the retirement in
accordance with the plan's policies.
Go to top
|
For the
most part vehicles are generally debts, meaning that the debt associated
with the vehicle exceeds its value. If however, the parties cannot agree
who gets which car the court will generally ask who drove the car
primarily during the marriage.
Go to top |
| 8.
What about personal property such as furniture? |
Personal items and furnishings generally are left for the parties to resolve. If spouses are on good terms they may go through the house together, dividing its contents. If a conflict arises the attorneys may have to exchange lists and negotiate. In extreme cases of dispute, some courts make the parties flip a coin to determine who gets to pick first, and then the parties alternate from there.
If an item has an unusual value, such as a coin collection or antique, the court can order it sold and its proceeds divided.
Go to top
|
| 9.
Stocks, Bonds and C.D.?s |
Financial accounts are divisible on the same basis of all marital property, regardless of whose name appears on the account, if the account was acquired with marital funds (i.e. those earned during the marriage). Stocks may be divided by current market value per share or, if possessed, the physical number of certificates may be split. Accounts of future value may also be divided, but be cautious if there is a required maturity date, as there may be significant penalty for dividing the account.
Go to top
|
| 10.
What tax consequences are there of the division of accounts/property? |
Generally division of assets during a divorce is not a taxable event. However, division of marital income (spousal support/alimony) is taxable as paid and the division of retirement, especially 401k?s, can have significant tax consequences if not properly rolled back into an alternate retirement fund.
Go to top
|
Back
to divorce info
|
leftread
|
