Options for Dividing Property in a Divorce

You’ve decided to end your marriage, and you know that you don’t want to endure the hardship of an ugly courtroom battle. Now you must work with your spouse to finalize the divorce. You must make decisions that would normally be determined by the courts, including dividing your assets.

When dividing property in a divorce, it’s hard to know where to begin. It can be difficult to part with something you believe is “yours,” but you also want to be fair. How do you determine what to sacrifice for the greater good? Here are some tips for dividing property in a divorce.

Equal Distribution

The word “equality,” in its purest form, is about everyone receiving an equal amount or opportunity. California is one of only nine states that divides property equally. Essentially, after a divorce is finalized, both parties are left with 50% of the marital assets. You could use this model as the basis for dividing property amongst yourselves.

Initially, the process is simple. You total the income and debt of the marriage and split it 50/50. After that, division becomes more complicated. Eventually, you will encounter a piece of physical property that cannot be easily divided among two people.

Using a house as an example, here are some ways you could divide physical property between two people.

  • One Person Pays the Other

You agree to give your spouse the home, as they will have primary custody of the children. Your spouse pays you half the value of the home. After having the house appraised, divide its value divide by two. That’s how much your spouse owes you for the house. You can even fold the cost of appraisal into that amount, each paying for half of the service.

  • Make a Trade

Perhaps you want half the value of the home, but your spouse cannot make that work. You could, in theory, ask for more property to cover the cost. Imagine the home is valued at $200,000. If your spouse keeps the home, you could ask for 100,000 dollars’ worth of the marital assets. For instance, you get the car, jewelry, and rare collectibles up to the value of $100,000. You could even trade debt with your partner to balance out payments.

  • Sell the Property

When there are no good alternatives for keeping the home, you could put it up for sale. Once the purchase finalizes, you split the money with your spouse 50/50.

You are not limited to the above options. Creative, money-minded people can design any solution that makes sense to them. If you and your spouse believe that an equal, 50% is the fairest solution, there are unlimited ways to make that work.

Equitable Distribution

If an “equal” split has only raw numbers as its basis, an “equitable” split attempts to base decisions solely on fairness. In family court, a third party decides what is fair for the spouses, which often leads to unfair results. The two of you experienced the marriage, and you should have an innate sense of what is right.

Here are some ways to divide assets equitably:

  • Divide Based on Income

When the marriage is over, there is no longer a “breadwinner” in the family. Each spouse is single and on their own. If this sudden loss of income leaves one party destitute, you can split assets in a way that keeps them afloat until they can sustain themself.

  • Divide Based on Emotional Investment

Technically speaking, anything that was purchased during the marriage is marital property. Imagine you have been collecting comic books since childhood. You brought a large collection into the marriage, but you’ve added to it since the wedding. All those new comics are, legally, marital property. In an equitable split, however, it makes sense for you to keep them all rather than attempt splitting the new ones between one another.

  • Divide Based on Personal Investment

In an equitable split, the person who used the item is often more entitled than the person who bought it. For example, imagine you bought your spouse a new car. It is in your name, and it came from your bank account. After you handed it over, however, you never touched it again. They use it for work and for taking the kids to school. They have kept it meticulously clean and maintenance. It is probably fair to let them keep the car.

  • Divide Based on Need

Return to the example of the house. Whoever has primary custody of the children should probably keep the home, as they will need it more.

Again, the possibilities are endless. Your baseline for decisions is fairness, and there are limitless ways to reach that goal.

Create Your Own Model

The above examples represent only the models states use to divide assets. You are deciding for yourselves, and you can do whatever you want. Perhaps you do a blend of equal and equitable division. Maybe you decide to keep only what is “yours,” whatever came from your personal income and let your spouse have the rest. If you want, you could sell everything you own, give it all to charity, and start over. The choice is yours. If you and your spouse are truly able to work together, you can make property division a collaborative process, one that satisfies you both.

Negotiating

No matter how good your relationship is, it may be wise to consult outside counsel before finalizing your property decisions. Mediation is a good option. In this process, you and your spouse meet with a neutral third party. This person keeps communication open, and if things get heated, they can help everyone stay cool and communicative. They can offer solutions and help you both see options you may have overlooked. You are still working together, you’re just doing so with the help of a legal professional.

If you need help negotiating property division for your divorce, reach out to our office. We may be able to provide mediation, helping to keep discussions smooth and productive. For a free consultation, call (949) 558-2624, or contact us online.

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