Ask A Dayton Property Division Attorney

Marital property is everything acquired during the marriage including debts. It includes things like real estate, retirement, accounts, credit card bills etc. The court has the power to divide any item that it finds to be marital.

Certain things can be excluded from division such as gifts, inheritances and property owned before the marriage. However, deciding what can be divided, by the court or by agreement can be tricky. Property otherwise “separate” might, under certain circumstances become “marital.”

Also the court can take into consideration a person’s separate property when deciding how to divide what is marital. Our office is experienced in assessing what items are subject to division and what can be safely excluded. We are more than happy to give you a detailed breakdown of these divisions and steer you clear of pitfalls during our free case evaluation.

The law directs the court to divide property equally unless an equal division would be unfair. In reality fifty-fifty splits are the exception since so many different factors can come into play in determining what is “fair.” Free case evaluation includes a breakdown of property division specific to your situation.

As in the division of all marital property, first the court must determine whether the debt is marital. Most, if not all, debts will be marital in nature unless the marriage is short term and one party entered the marriage with a preexisting debt. If the debt is marital and therefore, can be divided by the court, there are a number of ways to achieve its division. Remember though the court is bound only by rules of fairness and therefore no specific formula can be used.

The court may divide the debt according to income, it may divide it equally (especially if spousal support has divided the incomes equally), it may assign the debt to a party who receives a tangible item associated with the debt (such as a big screen TV or living room set), it may consider the debt so personal that even though it is marital it nonetheless should be assigned to one party rather than being divided (such as student loans, or a credit card bill from a vacation with a girlfriend/boy friend) in these cases the debt would not be considered to have benefited the other party at all. For an assessment of how debt will be assigned in a specific circumstance, call us for a free case evaluation.

Assuming it’s marital there are only two alternatives. Either the court may order the property sold and the proceeds/debt divided, or the property can be awarded to one party. Typically if the parties cannot agree on the property’s disposition the court is left with little alternative but to order it to be sold.

A few factors can weigh on the decision to award a property, such as the existence of children, but for the most part absent an agreement the court will have it sold.

If the court does award the property other things must be considered. If there is equity in the home (the value exceeds its indebtedness) the court could order the party receiving the home to pay a portion of the equity to the other party. The court may also order that the home be refinanced to remove the other party from the property’s obligation.

Generally any property, personal or real, owned prior to a marriage is considered separate property and may not be divided by the court. However, in certain circumstances a premarital asset can be converted to a marital. In real estate the court may examine such things as whether the deed and/or mortgage had the spouses name added to it or whether significant improvement was made to the home. The conversion of a separate asset to a marital asset takes into account far too many factors to list here. Our free case evaluation can assist you in determining which if any assets may be at risk for division.

Yes, assuming it was acquired during the marriage the court is empowered to divide it. Most retirement plans or accounts must be divided by what is referred to as a “qualified domestic relations order” or QDRO for short. A QDRO directs the plans administrator to divide the retirement in accordance with the plan’s policies.

For the most part vehicles are generally debts, meaning that the debt associated with the vehicle exceeds its value. If however, the parties cannot agree who gets which car, the court will generally ask who drove the car primarily during the marriage.

Personal items and furnishings generally are left for the parties to resolve. If spouses are on good terms they may go through the house together, dividing its contents. If a conflict arises the attorneys may have to exchange lists and negotiate. In extreme cases of dispute, some courts make the parties flip a coin to determine who gets to pick first, and then the parties alternate from there.

If an item has an unusual value, such as a coin collection or antique, the court can order it sold and its proceeds divided.

Financial accounts are divisible on the same basis of all marital property, regardless of whose name appears on the account, if the account was acquired with marital funds (i.e. those earned during the marriage). Stocks may be divided by current market value per share or, if possessed, the physical number of certificates may be split. Accounts of future value may also be divided, but be cautious if there is a required maturity date, as there may be significant penalty for dividing the account.

Generally division of assets during a divorce is not a taxable event. However, division of marital income (spousal support/alimony) is taxable as paid and the division of retirement, especially 401ks, can have significant tax consequences if not properly rolled back into an alternate retirement fund.

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