The process of dividing marital property during divorce begins with taking an inventory of all you, as a couple, have acquired during the marriage. Anything you owned before the marriage and anything inherited during the marriage will not count as marital property.
Being fair, open, and honest during this time is the best path to take. If you have money socked away in a personal account, that money should be considered the property of both spouses.
You may think you can get away with hiding marital assets but divorce attorneys are smart. One of the first things they will look for are assets that are tucked away out of sight. To keep from being penalized later on in the process, it is best to reveal all at the beginning.
And of course, the best thing you can do for yourself is to negotiate your own settlement without the help of a mediator or the courts. I do advise couples to have their own separate attorneys. If for no other reason than to read over any agreement before being signed to make sure their client has not settled for less than is fair or equitable.
Tips on dividing marital property during divorce.
1. Hire a mediator to help work through any sticky issues that may arise during the division of marital property. Some states require mediation during the divorce process, some don’t. If you are able to come to an agreement you won’t be required to go to mediation. If you can’t, it is worth your time and the expense to hire a mediator to work through the process with you before the courts become involved.
2. Don’t fight over the small stuff. That piece of art hanging over the bed may have emotional meaning to you; you may feel it should go to you and not her/him due to your attachment. If you are unable to come to an agreement a judge is not going to care how emotionally attached you are to certain items.
A judge will view what you have acquired during the marriage as property, nothing more and nothing less. A judge will order property divided according to your state’s laws, not according to your wishes.
In other words, you have a financial and emotional investment in the marital property. A judge has no investment and won’t be able to order a division of property that will be satisfactory to all involved. Only couples who are willing to work together will be able to do that.
3. If you attempt to hide marital assets, you will be breaking the law. During the divorce process, your divorce attorney has a “fiduciary duty” to give you what you paid for, which is sound legal advice and representation.
From the time you marry your spouse until the day your divorce is final you have the same legal “fiduciary duty.” If you violate this duty to your spouse during the division of marital property there will be legal consequences. So, don’t even think about trying to hide marital assets.
You can be ordered to pay legal expenses your spouse incurred during the search for hidden assets. You can be forced to give up to your spouse the assets you tried to hide. And you will lose credibility with the judge. Since there are more issues than marital property that will come before the judge, he/she is the last person you want to look like a liar to.
Marital property is divided according to your state’s divorce laws. In Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin property is divided under the “community property” method. In other words, all property is divided equally or fifty/fifty.
All other states divide marital assets under the “equitable distribution” method. Under this method property is divided “fairly” but not equally. This means a spouse’s financial contribution to the asset or a spouse’s ability to support themselves post-divorce will be taken into consideration when dividing property.
Familiarizing yourself with how the courts handle property distribution in your state can go a long way in helping you when negotiating with your spouse. In fact, I encourage anyone going through a divorce to become knowledgeable about their state’s divorce laws and procedures.
My bottom-line advice to you is to work with your spouse, if you can’t hire a mediator, don’t squabble over the small stuff and don’t think you will get away with hiding assets when dividing marital property during divorce.