Archive for the ‘Property Division’ Category

How do I Prepare for the Financial Part of the Trial?

Tuesday, March 16th, 2010

Once all of your documents are in order, the financial issues which are still in dispute should be fairly obvious. You can work with your attorney to organize the documents according to the issues which they represent.  If you are not represented by an attorney, you will organize the documents yourself.

For example, if you are claiming your spouse hid money in an account, likely documents which would support that claim would be the bank or stock account records which reflect the money, deposit slips showing deposits into those accounts, pay stubs which show automatic deductions to that account, and perhaps loan documents which show that account as an asset. Those different documents together prove the same point.

Each of the points which you intend to cover should be organized in terms of importance. The most important points should be covered early in the trial. The presentation will also need to make sense chronologically. If you jump around too much in time, the court is likely to get confused.

Make an outline, or assist your attorney in making an outline, of the points that you intend to make in the trial.  You will not be permitted to read directly from your outline during the trial, but the act of outlining what you plan to cover increases the likelihood that you will cover all of the crucial points. You may refer to your notes or documents during your testimony with permission of the court, but keep in mind that opposing counsel may also look at any document you use to refresh your memory during the trial. Click here for some terrific information on the financial aspect of divorce.

Also make an outline of what you anticipate your spouse’s case against you will cover.  Be prepared to answer questions about those issues.  For example, if your spouse has repeatedly accused you of over spending, assume that this will be one of his or her arguments in the case, and be prepared to justify your expenditures. Click here  for an article on some of the caveats of mismanaging money within a marriage.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Handling Money at the End of Your Marriage

Sunday, November 22nd, 2009

There are five financial issues that can take down a marriage – reduced circumstances, financial mistakes, caring for parents, caring for kids, and uncertainty – according to Ron Leiber, “Your Money” columnist of the New York Times.  These are truly issues that affect every marriage at some point, and I thought that they warranted a little more coverage.

Reduced Circumstances: Although some people may be disappointed over the reduction in lifestyle thanks to a layoff or change of interest rate, consider how dividing up a household doesn’t reduce costs.  Getting divorced will now mean that, however you and your spouse are dividing assets and responsibilities, you’re supporting two households on the same income that used to support one.  Even if you have a peaceful and inexpensive divorce, it definitely does not improve reduced resources.

It might be that problem is that you were unhappy and unfulfilled in the marriage, but you stayed because of the money.  Sometimes it’s easier to Spackle over problems with money than to address them.  You might be thinking “I want to leave this marriage” and then balked at the tumult of taking the kids out of private school, foregoing that trip to Hawaii each year, and downsizing your car.  If reduced circumstances have already stripped those things away, maybe you’ve just cleared the path to divorce.

In that case, more financial security created the problem by being a motivator for staying in an unhappy marriage, and losing those ties helped reveal the real issues.

Your Mistakes:  The mistake is really that you didn’t have the difficult conversations early. I can’t tell you the number of people who come in who have railed through their home equity line of credit because they didn’t have the heart to tell their spouse to stop shopping at Fred Segal.  But the discussion doesn’t revolve around the details.  It needs to be a dialogue that you are both engaged in.  “I want to share with you the home equity line of credit statement (or charge cards, etc).  I am concerned that we are over spending.  What do you think we should do?”  Have the conversation as a series of “I” statements (as opposed to “you should”) and a question to open up the discussion.

The other big fight we see is “We agreed you would go back to work after the kids went to school and then you never did.”

To turn the conversation around, the approach is similar to the discussion above:  “I am concerned that you’re not looking for a job when we agreed you’d go back to work when the kids were in school full time. What’s holding you back?”  If it’s that the spouse has changed his/her mind, then involve him or her in the budgeting process.  The loss of a second income will have an impact on the family.  How can each partner take responsibility for that?

Too many people just let it ride, and four years later end up in our office feeling like they’ve been let down by the spouse who didn’t go back to work or curb spending. They realized too late that the real problem was that both people weren’t involved in making an active decision.

Your Children:  While they may have started out as a surprise, their turning 18 and applying to college is not.  Have the conversations about college early and often.  And not just with your spouse, with the semi-adult children, too.  A drastic change in circumstances is something an 18 year old is able to understand.  But “we blew our wad on your siblings and didn’t plan for you” is sure to land him on a therapist’s couch.

Read more tips on dealing with finances in your relationship here: http://estestherapy.com/relationshiptips/2008/04/30/financial-stressors-keeping-your-relationship-strong-in-a-recession/, and to find out more about sharing college costs with your ex, go here: http://www.kiplinger.com/columns/drt/archive/2004/dt040826.html.

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Transfer of Property between Spouses

Tuesday, October 6th, 2009

The transfer of property between you and your spouse as part of your divorce is not a taxable event as long as the transfer takes place within one year after the date of your divorce. That means that all of the settlement issues you’re discussing in terms of who-gets-what won’t have any immediate tax consequences.

 

The non-taxability of transfers between spouses also applies to stocks, bonds, mutual funds, and any other property which you owned jointly and now one of you will own that same property separately.

Capital gains taxes and transfer taxes (in the case of real estate or other titled assets like (boats and cars) will apply if you later transfer that asset to a third party, either by sale or gift. Example: Bob and Jill jointly own a house which they purchased for $100,000, but is now worth $175,000. They also own stocks worth $50,000 which they bought for $30,000. Bob transfers the house to Jill and Jill transfers the stocks to Bob. Both assets have appreciated in value, as indicated above. Neither of these transfers triggers any tax.

 

Bob then sells the stock (to a third party) two weeks later to pay off some debts. He will owe capital gains tax on the $20,000 appreciation of the stocks, typically about 33%.

 

Jill sells the house two months later to a third party, as well. Because the appreciation is $75,000, she wouldn’t owe capital gains tax because the first $250,000 of appreciation is exempt from capital gains tax, but she would owe any transfer taxes which are assessed by her county or town.

For more information on the financial aspects of divorce, see http://www.peace-talks.com/finformation.php. Also visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.

 

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Personal Property in all Jurisdictions

Thursday, August 27th, 2009

The courts are reluctant to get involved in dividing up personal property, so if you and your spouse can do it yourselves, that is the best way to proceed. By the time you’ve argued in court about a two year old TV set and a sofa with a spot on it, you will have spent enough in lawyers’ fees to purchase both items new. Sit down with the list of your personal property and sort out the obvious items that one spouse or the other will want. The antique that came from your mother’s family home should go back to you, and his favorite recliner should go to him. Narrow your list to those items which are actually in dispute.

 

Once you have determined which items are in dispute, make a list of them. From here, there are several ways to proceed. One frequently used method  is to flip a coin, and the winner gets to pick the first item, the loser gets to pick the second item, the winner gets to pick the third item, and so forth.

 

Another possibility is to assign a dollar value to the property and have an “auction”. The spouse who wants certain pieces of property the most will be willing to pay the other spouse more for them than the spouse to whom the property is less important.

 

The Court will be reluctant to award one spouse money in exchange for giving the other spouse most of the personal property. Despite your sentimental attachment to your furniture and personal items, unless they are antiques, oriental rugs, or paintings by famous artists, most of your items have more value to you personally than they would to someone else. A judge will be unlikely to place values on the items, and award one spouse or the other the commensurate cash value for the items.

 

The message is to negotiate with your spouse for any personal property that you want, and don’t expect to be paid for what you give up. Take what you feel you deserve, but don’t expect any cash in lieu of property given up unless you both agree. For a good article on dividing property without a fight, see http://www.divorcehelp.com/rr/rr09.html.

 

If you cannot agree upon a fair way to divide up the items in dispute, at least you have narrowed the list, hopefully to a manageable length, for your lawyer to deal with in negotiations, or for the judge to divide at the time of the trial. For more tips on divvying up everything from family silver to DVDs, see  http://www.firstwivesworld.com/resources/resource-articles/divvying-everything-family-silver-dvds-during-divorce.

 

Emotions run high for certain possessions, and spouses sometimes use these hot buttons as an opportunity to retaliate against the other person. A good benchmark is “will this matter in 5 years?” If it will not matter, then be prepared to give it up now.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Yours Alone or Community Property

Tuesday, August 25th, 2009

If a business increased in value because the businessperson devoted time, skill, and expertise, then the business will be considered community property. Examples include an interior decorating business, software development, and other labor-intensive businesses.

Professional licenses are not subject to division, but can warrant alimony orders to even-out the earning power of the spouses.

 

To the extent that you intend to prove that an asset is your separate property, or that although an asset was purchased while you were married it was purchased with separate property, be prepared to present documentation which traces the source of the funds used to acquire the asset. If you have kept your property separate, you have a good chance of it remaining separate property for purposes of a community property state divorce. If you’ve intermingled separate property with community property, the court may find that you intended to give a gift of that separate property to your spouse, or that, at best, you’re entitled to reimbursement (without interest) for your separate property’s contribution to community property.

 

For instance, if you owned a rental property prior to your marriage and kept the rental income separate from any marital funds, in a bank account in your sole name, and used only the rental income to improve the rental property, then the rental income will be considered to have remained separate property, even though it accumulated during your marriage.

 

While the details of property division can become a bit confusing, keep sight of the initial premise: if it accumulated during your marriage, it’s probably community property. If you intend to claim otherwise, be prepared to prove it.

 

If property accumulated during your marriage, it’s probably community property and will be divided 50/50. If you intend to claim otherwise, be prepared to prove it. If you have questions, you may choose to meet with a divorce financial planner. See https://www.institutedfa.com/ReferralSearchPage.aspx. For resource on the financial aspects of divorce, see http://www.peace-talks.com/finformation.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Community Property States

Friday, August 21st, 2009

The remaining nine states are Community Property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. This means that, with a few exceptions, only property which was accumulated during the marriage will be divided, and that property will be divided 50/50, asset by asset, whenever possible. Wages, income and bonuses are community property, as is credit obtained during the marriage. Therefore, homemakers are not penalized by not working outside the home, and claims of “I earned all of the money, so all of the property is mine!” aren’t considered by the court. Property which accumulated to either of you prior to the marriage, or during the marriage through a gift or inheritance, or by virtue of appreciation or rents from other pre-marital property is considered “separate property” and is not subject to division by the court (again, with some exceptions).

In Community Property states, the main exceptions are:

 

  1. when one spouse receives a community property-funded education, the community property used to fund that education will be reimbursed for the educational expenses, unless both spouses received a community property funded-education, more than 10 years has passed since the education was completed, or the marital community has benefitted in some other way. Any educational loans taken out for educational expenses are the responsibility of the person who received the education.
  2. when liabilities exceed assets.
  3. when one spouse has misappropriated family assets. Oddly enough, this does not include excessive gambling debts, as all debts incurred during the marriage are considered marital debts, irrespective of whether one spouse had the permission of the other spouse to incur the debt.
  4. lawsuit liabilities for injuries. For lawsuit liabilities, who has to pay depends on whether the accident happened in the course of “marital business”. For example, if you are involved in an accident while driving to the store to buy groceries, then the liability is paid from community assets. If you get in an accident while on your way to meet a friend for a social outing, the liability is paid from your separate property.

 

For people with children and a family home, the family home may be awarded to the custodial spouse, and the other spouse may receive other assets to compensate for giving up an interest in the home.

 

Businesses started prior to the marriage present a special problem. The division depends upon whether any increase in the business value is due to the nature of the business, or the businessperson’s special efforts. If the business has increased in value because of the nature of the business, then the business is generally separate property. The leading case in this area of law is VanCamp, pertaining to the divorce of the VanCamps of pork & beans fame. Their business value increased drastically during World War II just because of the nature of the business, i.e., canned food during wartime. Such a business was maintained as separate property.

 

For a host of free divorce information, see http://www.peace-talks.com/resources.php. A list of other resources is available at http://www.peace-talks.com/divorceinformation.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Distributing Property in an Equitable Division State

Tuesday, August 18th, 2009

If you had substantial property prior to your marriage, or you inherited substantial property during the marriage, you may be able to preserve this property as your own, separate property even in an equitable jurisdiction state. Be prepared to prove ownership and how you acquired the property, and be sure to give this information to your attorney early in your case.

 

The following is a checklist of facts and factors for distributing property in an equitable division state:

 

  1. age
  2. health
  3. education
  4. ability to earn income in the future
  5. ability to accumulate assets in the future
  6. special needs of children
  7. parenting needs of children
  8. contribution to assets
  9. separate property
  10. inheritances, gifts, and family loans
  11. appreciation of joint and sole assets over time
  12. liquidity of funds
  13. tax ramifications
  14. pre-marital contributions
  15. non-monetary contributions

 

The better prepared you are, the more likely you are to feel that your settlement is fair. For a list off good books on the divorce process, see http://www.peace-talks.com/books.php. Also, be sure to see the Peace Talks resource center at  http://www.peace-talks.com/resources.php.

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Other Factors Influencing Property Division

Wednesday, August 12th, 2009

Other factors that can influence property division are how long you have been married, how old each of you are, what your health is like, what your educational backgrounds are, your prospects for future income, whether or not the judge thinks that the spouse ordered to pay child support and spousal maintenance will actually pay the orders, and a variety of other factors. Inheritances and money that each spouse contributed to the marriage are often important as well. Be sure to bring these matters up with your lawyer and discuss what they mean in your particular case, given your state’s laws. While each case is decided individually by the court, your lawyer can give you an idea of how judges in your state would consider each factor, and how that would translate into property distribution in your case.

 

Courts recognize non-monetary contributions to families just as they do monetary contributions. Housewives, stay-at-home moms, stay-at-home dads, and spouses who contributed to the family in non-monetary ways are recognized along with spouses who contributed to the home with salary, inheritance, or savings.

 

Don’t expect the court to do a dollar-for-dollar accounting of all money earned and spent by each spouse.

 

Most courts will assume that while you and your spouse were married, you made certain decisions together in the best interests of your family as a whole. The Court will not second guess those decisions by punishing one spouse for not working, or for not earning as much, unless those are material issues in your case. For example, if the reason your spouse didn’t work is because he or she had a drug problem, the Court will likely consider that unfavorably toward your spouse in the property settlement. If your spouse didn’t work because he or she stayed home with the children while you advanced your career, the Court will view that spouse as an equal contributor to your family assets, even though his or her contribution was not monetary. It is not the Court’s purpose to unravel every financial transaction during your entire marriage to decide who contributed exactly how much money, who purchased which item of furniture, and who worked the most hours, thereby creating a disparity in earnings. It may be helpful for you to work with a divorce financial planner. To find one near you, see https://www.institutedfa.com/ReferralSearchPage.aspx. See the financial section on the Peace Talks website at http://www.peace-talks.com/finformation.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Property: Equitable Division of States

Monday, August 10th, 2009

Forty-one of the fifty states are Equitable Division states (i.e., every state except Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin). That means that the court has the ability to order that any property belonging to either you or your spouse may be subject to division by the court. The division is based on what the court determines to be fair, hence the name “equitable division.” All  property acquired during the marriage is subject to division, as well as property which was acquired prior to the marriage by either of you individually, gifts from one family, inheritances, personal injury lawsuit settlements, bonuses, pensions, stock options and other assets which you have value to you.

 

Typically, most courts will focus on dividing the assets which accumulated during the marriage rather than those which accumulated prior to it. Pre-marital assets may be subject to division, however, depending upon the individual circumstances of your case.

 

For example, if you and your spouse have $150,000 in assets which accumulated during the marriage, both of you are in good health and have decent jobs, and your children are healthy and don’t require any special care, then the court will focus first on dividing those assets. Assets which each of you accumulated prior to the marriage will be considered, but if dividing the marital assets will provide each of you with a reasonable settlement, then several thousand dollars of pre-marital savings or property is probably “safe” from the court’s orders.

 

If, on the other hand, one of you has $100,000 in premarital savings, and together the two of you accumulated no assets, but $20,000 in credit card debt, it is likely that a court will order a portion of that $100,000 to go to the other spouse, and to pay the credit card debts. For information about finances and divorce, see http://www.peace-talks.com/finformation.php. You may also find it helpful to work with a divorce financial analyst, see https://www.institutedfa.com/ReferralSearchPage.aspx.

  

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Living Together During or After Divorce

Monday, July 13th, 2009

The Wall Street Journal published an article today about staying together after you get divorced, or staying together while the divorce is going on.

http://online.wsj.com/article/SB124743668592229179.html

Nice idea, in principal.  Right? It’s cheaper, you don’t have to worry about changing the kids’ schedules, you keep your same mailing address……

But what this article, and the similar article which appeared in the New York Times on December 30, 2008, failed to mention was that the time of separation and divorce can be a very difficult time for the participants.  Even for families which are not involved in chronic domestic violence, it is not uncommon for there to be 1 or 2 isolated incidents of violence surrounding the decision to divorce.

Are we sure that’s worth the money?

A client called last week and said, “We got into a fight and [spouse] slapped me. I called the police, and the police arrested [spouse]. Now what do I do?” This same client had called the week before complaining that he/she didn’t see how their mediation could be completed for the average amount of fees which we quote clients.  Now the cost of mediation is a drop in the bucket—-spouse had to be bailed out of jail, there’s a restraining order, and one or both spouses will need an attorney.  I’ll bet that spouse is no longer interested in settling through mediation, so the new divorce lawyers will easily cost 3 times the amount of money that client was worried about just a week prior.  And let’s not forget that all of this went down in front of the parties’ children.

So is it really about money?  At this point, I fail to see the savings.

Likewise, the Los Angeles Times has a similar article in today’s paper:

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As a 20 year divorce professional (litigator turned mediator) I worry that in an effort to save a couple of bucks that people are putting themselves in danger.  And if it’s not physical danger, per se, what about what the children are witnessing? Are these parents who are staying together really perfect role models for how adults should handle conflict?  I sure hope so, but somehow I doubt it.

Let’s not forget that an overwhelming number of non-gang-related homocides are [former or current] romantic partners. Remember the fellow who dressed as Santa and killed half of his wife’s family last Christmas? He was her ex husband.

My observation of “I can’t afford it” is really “I don’t value it so I’m not going to spend money on it”.  Remember when you shared an apartment with 2 other people in college? Or you clipped coupons to make ends meet because your first job paid $5 an hour?

Staying together in the same house while you’re getting divorced may work for some folks, but for those it does not work for, it is a disaster.

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