Divison of Property
At Hale and Hale, PLC, our experience with complex property division in divorce and the relationships we have established with appraisers, business valuators, accountants and other professionals is invaluable. To arrange to meet with an attorney about your concerns, call our offices in Franklin, Tennessee, or contact our firm online.
If a couple has little or no marital property, no children and have reached an agreement on whether spousal maintenance/alimony is appropriate, their divorce usually can be finished quite quickly. Most couples, however, particularly those who have been married for a long time, have numerous issues to work out during the divorce process. These issues may involve children or significant marital property, including: personal items, real estate, a family business, large or concealed debts, trusts, real property in other states, joint and separate accounts, investments, insurance, pensions and other assets. In any divorce, especially one involving complex property matters, an experienced family law attorney from Hale and Hale, PLC in Franklin, Tennessee, can offer valuable guidance and advocacy.
Equitable distribution states
Most states are equitable distribution states. Although the specific definition of equitable division of property varies from state to state, it is generally the division of marital property in a fair and just manner according to the specific circumstances of the divorce/dissolution of marriage. It is important to keep in mind, though, that “equitable” does not necessarily mean “equal.”
When one spouse obtains property in a community property state, generally the other spouse automatically gains a half-interest in it. In equitable distribution states, on the other hand, the other spouse only has an interest in the property upon filing for divorce or upon the death of the other spouse. Even then, the other spouse doesn’t necessarily have a 50/50 interest.
Courts in equitable distribution jurisdictions consider numerous factors in allocating property, and these vary from state to state according to legislation and precedential court opinions. However, there are generally a few basic, non-financial factors that are considered in nearly every jurisdiction. These include:
- One spouse’s homemaking activities, including child care, food preparation, cleaning and laundry
- One spouse’s forgone opportunities, including to the benefit of the other spouse
- One spouse’s social obligations, including hosting or attending social events in support of the other’s career or business goals
Premarital/prenuptial agreements can go a long way toward shaping the outcome of property division decisions, both in community property and equitable distribution states.
Property that must be allocated upon divorce is usually property that was acquired during the marriage – in other words, “marital property.” In most cases, property acquired before the marriage, property acquired after the divorce and gifts or inheritances received by only one spouse during the marriage are not considered marital property.
Once the court decides which property is marital property, it must determine the value of that property. Then, it allocates the property between the spouses. If you and your spouse are able to agree upon the allocation of property and other important matters, you will have a far greater influence over the court’s ultimate decision. Courts give a great deal of deference to property settlement agreements proposed by the parties themselves in divorce cases.
Certain kinds of property continue are commonly the cause of controversy during a divorce. Divorcing couples should be aware of the issues that these assets could present.
- Family home. The primary residential property owned and lived in by the divorcing couple is often the marriage’s largest asset. Dealing with its division can be complicated, particularly when there are children involved. Courts often favor allowing the custodial parent to retain the home. Doing so may require complicated arrangements to ensure that the spouse who does not live in the home receives adequate compensation for his or her share of the home’s value, as well as provisions for ongoing mortgage payments, tax liabilities and upkeep of the property. If these issues cannot be resolved, the couple may be forced to sell the home and divide the proceeds; relocation may not be in the best interests of the children, so judges often encourage parties to try everything in their power to reach a resolution prior to moving forward with a sale.
- Pensions. Pensions often are the second-largest marital asset. A court in a divorce case may enter a Qualified Domestic Relations Order (QDRO) requiring the administrator of an ERISA-regulated pension to make payments to both the worker and the former spouse. Similar provisions may be necessary to handle other non-ERISA retirement accounts as well.
- Family-owned businesses. When spouses work together in a family-owned business, division of the business presents complex allocation and valuation problems. As with family homes, if there are not enough marital assets to compensate the non-retaining spouse adequately for his or her share in the business, a forced sale or long-term buyout may be necessary as part of an equitable property division.
Speak to a divorce lawyer
Many couples have a difficult time reaching an agreement about how to divide their property. Because the rules in each state vary significantly and because the ultimate division of property depends on the complexity of your assets and liabilities, it is important to consult with an experienced family law attorney at Hale and Hale, PLC in Franklin, Tennessee, for assistance.
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.