How to Get Your Share of Assets From a Divorce
State law governs the division of a couple's assets and debts upon breakup of their marriage. In community property states, courts divide marital property and debt equally between the parties. In equitable distribution states, courts must implement an equitable division of the marital estate after considering a state-specific list of factors, which can result in an unequal distribution. Protecting a party's property and debt division rights involves similar actions in either jurisdictional type.
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Determining the Marital Estate
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Determine what property and debt is marital and what is separate. While the definition of marital property varies with the state, generally any property acquired during the marriage through the efforts of either party will consititute marital property and any debt incurred by either party during the marriage will consitute marital debt. Classifying property and debt as either marital or separate requires an accurate listing of what the assets and debts are and how they came to be.
Assigning a Value to Assets and Debts
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Once the parties determine the extent of the marital estate, they must assign it a value. States vary as to the critical date of valuation, but as a general rule parties will need to establish what an asset or debt was worth on the date of separation and also the date of distribution. Some states require a valuation as of the date the parties actually divorced. Conflict often occurs in the valuation process, since parties want to downplay the value of assets in their possession and maximize the value of those held by the other.
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Tracing Separate Property
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Generally, separate property consists of property acquired by either party before the marriage, during the marriage through pre-martial efforts, by gift or inheritance, or after separation through post-separation efforts. Property acquired during marriage in exchange for separate property remains separate, but problems arise where a party has so commingled separate property with the marital estate that it is no longer apparent whether a given asset is separate or marital. This requires the party claiming the asset as separate to trace the original separate property into its present form.
Settlement Negotiations
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Although the parties may hate each other, they should attempt to settle their differences out of court as far in advance of a trial as possible, using a mediator if necessary. Trials are expensive, and what a party gains by holding out is often eroded by the heightened attorney fees associated with preparing a case for trial and then carrying it through in the courtroom. A trial also creates considerable uncertainty, as neither party knows what a judge is going to do.
Trying the Case
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When parties cannot resolve their differences out of court, they have to try the case. In an equitable distribution or community property proceeding, the parties must establish an accurate classification and valuation of the property. In equitable distribution cases, they must also convince a court what distribution would be equitable by proving the existence of one or more of their state's distributional factors.
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References
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