"Is it true that going to court is the only way to ensure you'll get your fair share?"

This statement is nothing but a myth. The truth is that a skillful attorney or mediator can help you receive your fair share out of court at far less expense.

For instance, if you own a house and have no children or grown children, and you go to court, the judge will most likely order the house to be sold and the net proceeds of sale to be divided between the parties. This may be fair. However, there are other alternatives for you to receive your fair share. In a negotiated or mediated divorce, perhaps you will agree that one party will remain in the house and will refinance the mortgage to buy out the other party's equity in the house. Since the house is not being sold, there will not be the large deductions from the gross proceeds of the sale of the house for closing costs, broker's fees and commissions, title charges, and attorney's fees before the equity is divided between the parties. In this negotiated case, each party gets a larger share than he or she would receive by "going to court."

Another example is the tax-shifting benefit from unallocated family support that can be negotiated by a skillful mediator or attorney. Unallocated family support is deductible from the payor's income and taxed to the payee, whose income is generally taxed at a lower tax bracket, creating savings for the entire family. A judge would most likely order maintenance (formerly called alimony and deductible to the payor) and child support to be paid. In this instance, only the maintenance is tax deductible, resulting in less of a tax savings to the overall family unit.

Hopefully, these two examples have demonstrated that it is possible to get more than your fair share by not going to court.

Kathryn M. Somers has helped thousands of clients as an attorney and mediator over the past 22 years. Her practice is located in Northfield, Illinois.

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Out With the Tragedy: Turning Divorce into a meaningful experience
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