Ovu0ng/Shutterstock Ideally, when a couple is happily married, no one is thinking in terms of "yours" versus "mine" versus "ours." But when things break down, the distinction is critical because "who leaves with what" comes down to what is and is not "marital property." According to fathers' and children's rights advocate and family law professor Anne P. Mitchell, "marital property" is generally everything accumulated during the marriage (regardless of whose name it's in). Although it varies by state, generally, the following do not count as marital property:
- Anything owned by either spouse prior to the marriage or following separation
- An inheritance received separately by either spouse
- A gift received separately by either spouse
Check out some marriage advice from divorce attorneys.
Equitable distribution versus community property
Any divorcing couple can agree on any division of marital property, says Mitchell. However, before you make a settlement proposal, it helps to understand your best and worst-case scenarios if you went to court. That begins with knowing whether you live in an "equitable distribution" versus "community property" state. In equitable distribution states (all states except Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, and Washington), a judge would divvy up your marital property based on "equitable" principles. In community property states, marital property is divided 50/50.
If you think divorce laws are weird, check out these bizarre marriage laws you might be breaking right now.
What are "equitable" principles?
In equitable distribution states, judges are guided by either statute or case law or a combination of both. According to Mitchell, some of the typical factors a judge may consider include:
- duration of the marriage
- age and health of the spouses
- what each spouse brought to the marriage in terms of assets and education
- if there are children and how custody is divided
- earnings potential of each spouse
- the form of the assets and how liquid they are (real estate may be more liquid than stocks; cash is the most liquid)
- whether either spouse attempted to hide assets
- any other factor the court expressly finds to be a just and proper consideration
And if things are getting testy when you're discussing these issues, here's how to stop an argument using just one word.
But you don't have to leave it up to the judge
Valery Evlakhov/Shutterstock If you're in an equitable distribution state, understanding how a judge determines what's "equitable" in your case is an important starting point, but it's far from the final word on the matter. That's why you should seek advice from a lawyer at the outset, says Mitchell, even if you intend to settle out of court or engage in alternative dispute resolution (an ADR), one of the options couples can take to avoid going to court. Mitchell points out that this is true whether you're in an equitable distribution state or a community property state. Here's how to get started finding a divorce attorney.
Try to settle out of court
"Settling out of court will always save you on court costs and legal fees, plus you will avoid the stress and uncertainty of going to court," points out Mitchell. In addition, "negotiated settlements have a higher rate of satisfaction and compliance because both parties have had the opportunity to help shape the agreement." The traditional settlement method is the one whereby each spouse retains a separate attorney, with the possibility of 'seeing each other in court' always remaining out there, explains Rhonda E. Ores, a partner at New York's Fox Rothschild LLP.
Stokkete/Shutterstock Ores gave Reader's Digest a simple breakdown of the most popular forms of ADR for divorce cases (in addition to a traditional settlement, as noted above).
- Mediation: A neutral third party facilitates negotiation, but can't give legal advice or advocate for either spouse.
- Arbitration: This is a form of private dispute resolution that eliminates many of the costs and delays inherent in courtroom cases.
- Collaborative law: Each spouse retains a separate attorney, but everyone agrees to use cooperative techniques rather than adversarial strategies and litigation (but in the event the parties can't come to an agreement, they'll need to retain new attorneys).
Seems like a good time to break for some lawyer jokes.
Aim to keep it peaceful
"The more that anger comes into play, the more expensive and heart-wrenching the divorce process will be," advises Dror Bikel, managing partner of Bikel and Schanfield in New York City, who has more than 30 years of experience representing clients in high conflict divorces. Sure, you're going to disagree about a lot of things (and that's leaving aside custody issues—a major source of conflict in many divorces). But you'll be best off if you control your anger, even as you hash out what may or may not be equitable and what may or may not constitute marital property.
Here are eight tips for making your arguments more fair and productive (and less ugly!).
If you own it, own up
Pushish Images/Shutterstock Determining what constitutes "marital property" requires each spouse to identify—on penalty of perjury—what they consider to be both marital property and their own separate property. What neither spouse should EVER do is to try to hide assets of any kind, says Georgia matrimonial attorney, Randall Kessler. One lottery winner tried to do just that, and it backfired to the tune of a million bucks. Read some more crazy-but-true divorce stories.
Don't even think about a Swiss bank account
One way people try to keep assets from appearing as "marital property" is by funneling funds offshore. This is a bad idea, says Bikel, who's had some experience catching up with those who try such nonsense. Some people try to divert assets from the "marital property" by taking cash out of a business or by "giving" that money to a friend, Bikel adds. Neither is illegal, per se, but become illegal if you fail to disclose it under oath.
Remember: hiding assets = bad. But there are still many creative yet fully legal ways to hash out the financial terms of a divorce. For example, while "petrimony" is not recognized as a legal concept (and Kessler says that the mere mention of it will earn you the side-eye by New York State judges), considering the expenses of keeping the family pet is something divorcing couples should factor in when determining how much money they need to live on as they move forward with their lives. "You can contract for anything you want as long as it isn't illegal," explains divorce attorney Rebecca Zung.