Division of Personal Assets

Property owned by married parties falls into the category of "marital" or "non-marital property" and is subject to division as part of a marital dissolution or legal separation action.
 
"Marital property" is property obtained by the parties at any time during the marriage

"Non-marital property" includes any property acquired by either spouse before, during, or after the existence of their marriage that is:

• Acquired as a gift or inheritance made by a third party to one but not the other spouse
• Acquired before the marriage
• Acquired by a spouse after the valuation date
• Excluded by a valid Antenuptual Contract (also known as a Prenuptial Agreement)
• Acquired in exchange for, or is the increase in value of, property that is described as in any of the above.

How Does the Court Divide Property?

In a divorce, the Court makes a "just and equitable" division of the marital property of the parties without regard to marital misconduct.
 
Equitable does NOT mean Equal

A just and equitable disposition of the marital property does not necessarily mean that the property must be divided equally.  The Court has significant discretion in determining what is just and equitable in the circumstances.

The Courts must make specific findings regarding division of property, and the Court  bases its findings on many relevant factors, including the following:

• Length of marriage
• Any prior marriage of a party
• Age of each party
• The health of each party
• The stations of each party
• The occupation of each party
• The amount and sources of income of each party
• Vocational skills of each party
• Employability of each party
• Estate of each party
• Liabilities of each party
• Needs of each party
• Opportunity for future acquisition of capital assets and income of each party

But what about non-marital property?

Even if property is deemed to be non-marital, the Court may still grant a portion of that non-marital property to the other spouse if the award of marital property is so inadequate as to work an unfair hardship, considering all relevant circumstances.
 
How is the property value determined?

The valuation of property is a very difficult issue in divorces and it is important to consider the use of experts in valuing property with substantial value.  The value of property is a question of fact and, therefore, no two people may necessarily agree, unless the property is easily valued on an open market like, for example, a publicly traded stock.  On the other hand, a piece of real property may be valued differently by two real estate appraisers.
 
Some property is difficult to value, such as closely held corporations or other business entities.  In these situations, your attorney will typically engage a valuation expert to assist in arriving at a value of the business entity.

What happens to our debts?

Just as the Court is required to fairly divide property, it must also fairly divide the couple's debts.  Sometimes, these can be substantial.  Some considerations in dividing debts are whether the debt was incurred for the benefit of both parties, and whether one party has the better ability to satisfy the debt.
 
What if I don't like what the Judge did?

Once the Court has made an award of property, it is deemed to be final. The award is not subject to modification unless overturned on an appeal, or unless one party committed a fraud in disclosing the nature and extent of his or her property.