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Dividing assets in a divorce

Dividing assets in a divorce can be difficult and complex.  A common belief is that a court simply appraises everything and splits it down the middle.  While a court will always try to divide assets fairly, many factors can create challenges.

Large assets such a houses, cars, and expensive toys and jewelry can be difficult to divide.  Other significant assets such rental properties, retirement and pension plans, stocks, businesses, or professional practices and licenses pose similar problems and can easily create contention.

What is the difference between separate property and marital property?

When a court evaluates assets in a divorce, it will first classify them as either separate property or marital property.  Separate property is usually property owned prior to the marriage, an inheritance, gifts and heirlooms, or a payment or judgement for pain and suffering.  Typically, courts do not divide separate property in a divorce.  However, separate property can be classified as marital property if certain criteria are met.  If property owned before the marriage is re-titled into both spouses’ names, or an inheritance is deposited into a joint bank account, it may become marital property.

Marital property refers to all assets acquired by either spouse during the marriage.  Common items of martial property include houses, cars, and pensions.  The ease in which a court can divide marital property can fluctuate.  Because every situation is different and the laws regarding separate and marital property vary by state, consulting with a divorce attorney is critical.

How is the fair value of property determined by the court?

After they are categorized as separate or martial property, courts then assign a monetary value to each asset.  This is where the whole process becomes complicated.  What should a court do if separate property has increased in value during the marriage?  How should a court divide assets such as stocks, investments, or companies that have the potential to increase in value down the road?  Should the court exclude the asset?  Divide the increased value?

These “what if” questions are another example of why it is wise to seek the aid of a divorce attorney.  Many possibilities exist when entering a divorce and, without legal representation, can have long-term consequences.  While many couples feel they are capable to divorce without attorneys, asset and other financial decisions usually generate stress and tension.  A skilled divorce lawyer will help you sort through these important issues to ensure you receive a just outcome.