Property division in a divorce is always difficult. Some people are able to be adults and divide their property in a mostly equal fashion while others fight tooth-and-nail over the flat screen television.
As a divorce attorney, I have seen both sides of the coin. I have also noticed that it doesn’t matter whether couple is fighting over property or not, they typically don’t understand the law.
In an effort to clear up any confusion, I’ll try and explain some generalities about the law that may apply in your state. (As an aside, you should check with a licensed attorney in your state for any questions about the law as it relates to property division where you live.)
When a divorce is filed with the court, the filing party must ask the court to make a decision on the division of marital property. Some states presume a 50/50 division while, in other states, the presumption is simply an “equitable division.” An equitable division standard usually means that the judge can, but is not required to, divide assets in an fair fashion.
In all cases, the court must make a fair division of assets and cannot look at marital misconduct or adultery. It doesn’t come into play at all, so don’t ask.
If the parties cannot agree on the division, an evidentiary hearing will be held where the lawyers and the clients each present their evidence as to how they would like the property divided. After the court has heard evidence, the court usually takes the issue “under advisement” which means the court won’t make a decision for 30 to 60 days.
In most states, the judge will make a determination about the division of property based upon some of the factors listed below:
- how long the marriage was in effect,
- the health and the age of both spouses at the time of separation;
- the occupations, income levels, skills, and other financial reasons;
- any other factors that the judge thinks is relevant.
I should also point out that judges tend to “split the baby”. This means that neither party typically gets everything they want. Apple Valley MN Divorce attorneys sometimes make the comment that you know it wasn’t a good evidentiary hearing unless both parties are upset.
Some of the “other relevant factors” that the judge could use include: (1) what the parties brought into the marriage and (2) whether the husband or the wife are purposefully hiding or destroying marital property. The biggest no-no in a divorce proceeding is for one of the spouses to lie about their financial worth and hide assets. If the judge finds out, the other side is going to be rewarded with the majority of the property and the spouse who is hiding or lying may face sanctions from the court – including contempt of court and payment of the other side’s attorney fees.
Finally, if you are faced with a situation where you are not represented by counsel and the other side is – you need to think twice about hiring an attorney. There is another maxim that lawyers and judges use: “he who represents himself has a fool for a client.”
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