Divorce and Property

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Divorce and property are two interlinked issues that often result in dispute between the partners. Assets distribution in divorce is a major aspect of a whole legal procedure. Many times, the partners divide their assets and liabilities through discussions and making a mutual agreement. But, if they do not succeed to agree over this matter, the court resolves the matter using its jurisdictional powers. The court may take various factors into consideration for a fair and satisfactory solution of this problem. Some of the matters are discussed below.

The Difference between Marital and Separate Property

Before opting for a division, it is important to know the assets that are considered under division and the ones excluded. According to the divorce laws, the assets and liabilities acquired during the period of marriage by both partners are regarded as marital property. It is the total assets that are actually distributed between partners. Any kind of assets earned before marriage by a particular spouse will be regarded as a separate earnings of that person. Individual or separate earnings are excluded while calculating the assets for distribution after divorce. But, it is to be noted that, the value of such individual earnings may be a matter of concern in an equatable distribution.

Types of Property Division in a Divorce

There are two types of methods for dividing the marital earnings. A state might consider either of the methods when considering the distribution of assets during a divorce procedure. Many states follow the principle of equitable division, while few of them make division on an equal basis. The details about these types are as follows.

Equal division of Property in Divorce

About nine states follow equal division priciple in their laws. The laws in these states mention that a marital assets should be divided equally between the partners, regardless of who the owner of such assets is. Also, the debts accrued during the marital period is also subject to equal distribution. Here, separate assets of the spouses are not considered while dividing the marital earnings. It is to be noted that such division means the equal amount should be owned by both partners, not the equal physical or real assets. The distribution is done on the 50-50 basis.

Equitable Division of Property in Divorce

Almost all states divide the marital earnings on this basis. This means that the assets and liabilities will be a matter of fair distribution, not necessarily equal. Many factors are taken into concern for calculation of such division. Some of these factors are:

  • The duration of marital period
  • The physical and mental conditions of both partners
  • The separate savings of each spouse and value of such assets
  • The obligations and liabilities of each spouse due to marriage
  • The contribution of each spouse in acquiring current assets. And also, any fault in wasting or misusing them

In order to ascertain an equitable distribution, an evaluation is of supreme importance. The first and foremost step that an arbitrator or lawyer or administrator should take is to call the 'divorce property appraiser'.

The functions of this appraiser are as follows.

  • Identification of each and every asset in the marital estate
  • Determination who is the owner of all the identified assets
  • Valuation that is applicable on the date of dissolution. This valuation must be relevant and acceptable by USPAP (Uniform Standards of Professional Appraisal Practice)
  • Determination of the authenticity. This might be a replica
  • If the Divorce Property Appraisal proceeds to a lawsuit, then providing expert testimony

Some of the highlights of this appraisal are as follows.

  • An accredited appraiser can conduct an objective certified appraisal. Both the partners would be benefited by this process as the duration of lawsuit, expenses of lawyers and the appraisal cost would be minimized
  • If a mutual divorce assets appraisal takes place, the proceedings are very simple and can be completed in a short duration
  • The valuation of the assets can be done in such a manner that both partners accede to it. Moreover, it can be made irrefutable as on the date of dissolution
  • Let us assume that one partner has selected an appraiser and the other spouse does not accept him/her i.e. the appraiser. Then, the partner's appraisal would be defended during the lawsuit by an 'expert appraisal witness'

An appraisal comprises of the following.

  • Real property i.e. the residence
  • Personal earnings, inclusive of the following
    • Retirement plans
    • Pensions
    • Gems
    • Bullion
    • Coins
    • Inventory
    • Trademarks
    • Logos
    • Computers
    • Equipment
    • Machinery
    • Furniture
    • Collectables
    • Rugs
    • Antiques
    • Guns
    • Art
    • Jewelry
    • Vehicles
    • Any business
    • Other movable assets
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