Dividing up property that was accrued during marriage is one more difficult issue that has to be dealt with during divorce. Understanding how the judge would do it and what your options are for doing it without the judge’s intervention can make a difficult task a little less difficult. In spite of the fact that if you and your spouse could easily work things out together you probably wouldn’t be getting divorced, working together to divide the property could save you headaches, court time, attorney fees, and the (potentially) unsatisfying result of a judge’s division.
Most states have laws providing for ‘equitable distribution’ of marital property. (You have to look at your state laws to determine whether ‘marital property’ is everything that was acquired during the marriage or if exceptions apply.) The term ‘equitable’ means that it has to be fair, but not necessarily exactly equal.
FACTORS TO CONSIDER WHEN DIVIDING PROPERTY
Factors that judges can consider when they determine what is a fair way to divide the property include:
• Who uses the property
• How the property was acquired
• If there’s debt on the property
• If there is sentimental attachment to the property
• If one party is seeking particular property out of vindictiveness
• What other property there is to divide
• How the overall debt is being divided
• Any other factor that is relevant to specific property
HOW PROPERTY IS DIVIDED
There are 3 different ways to divide most property (leaving the complex issues regarding dividing businesses and pensions for another time). Terminology may differ a little from state to state, but the basic concepts are the same.
1) In kind: Dividing like items in half. Example: A set of eight Flintstone juice glasses could be divided by giving four to each spouse.
2) Set-off: Property that is not the same divided in such a way that each party is getting assets that have comparable value. Example: Wife receives a bedroom set worth $1500 and husband receives a kitchen table with chairs and a Best of the Brady Bunch DVD collection with a total value of $1575.
3) Alimony in lieu of property. In other words, money for stuff. Example: Wife is awarded the house that has equity in the amount of $10,000 and husband receives $5000 in cash (either from other marital sources or refinancing the house).
HOW TO VALUE PROPERTY
Unless you are already in agreement about how everything will be divided (and if you were you probably wouldn’t be reading this) you should determine what the value is of the major property items such as a house, vehicles, furniture, financial accounts, antiques, tools, big appliances, collections, jewelry, art, etc. (Nobody is interested in valuing your linens, clothes, and Tupperware unless there is something pretty special about them.)
For most valuable assets – things like houses, land, and antiques – an appraisal will probably be necessary. Check with your attorney, friends/family, or other professionals you know for a referral to a qualified appraiser.
For vehicles, whether automotive, recreational, watercraft or aircraft, you will be able to find valuation sources on-line. Enter the type of vehicle you are looking to value into a search engine with the word ‘valuation’ and several sources will probably pop up. You will need to put in some information, like mileage, condition, etc. in order to get a valuation range.
For the rest of the stuff, you have to figure out an approximate value on your own. We’re talking garage sale prices here. The judge isn’t going to consider replacement value or what you paid for an item three years ago and neither should you. If you aren’t a savvy garagesaler, other sources to get ideas on values for used property are:
• Craig’s List
• Classified Ads
• Pawn shops
• Thrift stores
DIVIDING THE PROPERTY WITHOUT THE JUDGE
Once both spouses have gotten lists of property and best-guess values, you can negotiate to divide it up using the same factors a judge would consider. Be reasonable and understand that each of you will probably have to make compromises to get the job done. If there aren’t obvious choices for some of the property that you would both like, take alternating turns making a pick. Or flip a coin if it is one item that just can’t be decided. If you can’t agree on everything, avoid the temptation to make all-or-nothing ultimatums. Every agreement made saves money, so agree upon what you can and reduce the number of decisions that you have to pay lawyers to quibble about.
Tip: If it’s easily replaced (think Mickey Mouse Chip Clip – and yes, that’s a real example of something I saw disputed) or easily copied (pictures and home movies), let it go or split the cost of making duplicates. Save your money, court time, and energy for the really important stuff – like keeping kids safe and protecting your future.
ONE LAST THING TO THINK ABOUT
If you need more motivation for dividing up your own property as opposed to having a judge do it, consider some of the rulings I have witnessed:
• The judge told the parties to meet at a certain time and alternate picks (gee, how much money did it cost them to go to court to find out how to do that??)
• The judge looked at the items that each party had inflated values on (assuming they would be awarded to their spouse) and gave those items to the person who over-valued it, adding the value they had assigned it to their side of the asset ledger sheet. (Just another reason to make sure you use good faith when assigning values to your property!)
• This one had a jaw-dropping effect: the judge looked over the property lists and awarded anything he thought the wife would like (sewing machine, scrapbooking stuff, antique lamps, etc). to the husband. The wife was awarded all the hunting gear, car repair tools, the pontoon boat and a variety of other things that had a male vibe about them. After finishing his list of who would get what, the judge looked at the husband and wife and said:
“Feel free to trade things, if you like.”