Division of the marital estate

finley12Proper valuation and equitable division of the marital estate involves accounting for many factors, including:

  • the length of the marriage,
  • the needs of the parties,
  • the needs of the children,
  • the earning power of the parties,
  • the source of the property,
  • where the contributions toward property acquisitions came from,
  • the cause of the divorce, fault in the breakdown of the marriage, and,
  • any other factors the Court finds to be relevant in a given situation.

Defining the marital estate can involve claims for restoration of separate property of assets that a party owned before the marriage or never committed to the marital estate.  Exceptions can include situations where the other party contributed to the acquisition, improvement, or accumulation of the asset.

In calculating value, courts may take into account the costs of the sale, including tax consequences, if a sale is likely to occur.  However, courts are not required to take these transaction costs into account, and the party seeking credit for these costs has the burden of proving them. Therefore, it is important to understand and carefully consider the tax consequences of any property division.

Similarly, while debts are generally treated as negative assets in a property settlement, debts must also be considered as to the issue of support because debts have a direct effect on the parties’ cash flow.

The foregoing is general information only and does not constitute legal advice regarding your specific legal matter nor does it create an attorney-client relationship regarding your matter.