Even in relatively short, and certainly during longer marriages, couples acquire and accumulate property. This property might include cars, real estate, furniture, artwork, and miscellaneous “stuff.” Some of the items (for example, kitchen dishes, utensils, and glassware) may not have a lot of value if one went to sell them but could cost a fair amount of money to replace. When divorce is on the horizon, people often wonder how all of it will be divided and they want to make sure they get their fair share.
If your divorce is litigated in court, property division can be very complicated and contentious. All property must be (1) “characterized” or identified as marital or joint (with both parties having an interest), separate (belonging only to one party) or partly marital and partly separate, (2) valued, and (3) allocated (awarded) to one or both parties. Each of these determinations can be both complex and time-consuming and, consequently, expensive.
Identification of property as marital or separate
To determine what property is marital the court will try to determine when it was acquired (if during the marriage, it’s probably marital), whether it was inherited by or gifted to one party and kept separate from the other party during the marriage (this is probably separate property), or whether it was brought by one party to the marriage and then shared with the other party (this might be part separate and part marital). Property that is part separate and part marital might include retirement assets or real estate.
Valuation of property
Each item of property must also be assigned a value. Some property can be valued using online resources (like Kelley Blue Book for cars) or even by the parties (an owner of real estate can estimate its value). More valuable property (for example, real estate, artwork or antique furniture) may need to be valued by a professional appraiser. Arguments often erupt over property valuations because one party or his/her appraiser may arrive at a value wildly different than that arrived at by the other party or
His/her appraiser. A “battle of the appraisers” at trial then ensues, leaving it to the judge to decide who is right. This is a very expensive scenario.
Division of property
In a litigated divorce, the judge will decide who gets what and in what proportions. One party could be given a greater percentage of the property if there is marital misconduct, or if other circumstances are present which persuade the judge that an unequal division is “equitable” or fair. Judges often split the assets equally between the parties even when there is bad conduct by one party.
Complicated and a bit maddening, right?
Division of property in collaborative divorce – the story of the lemon
In collaborative divorce, making decisions about property is so much more civil. There is a story in collaborative circles about dividing an item of marital property: a lemon. In a litigated divorce the judge is likely to order that the lemon be cut and one-half of it be awarded to each party. On the surface, this would seem to be fair. When one considers, however, that one of the parties wanted the juice of the lemon to make lemonade and the other party wanted the zest of the lemon to make pie, the result no longer seems fair or equitable since the lemon is now unusable by both parties for their respective intended purposes. This is why, in collaborative practice, the parties focus on the needs and interests of each. Why do you want the lemon? Do you need all of it or will less than the whole meet your needs? Could you take the peach instead?
In the collaborative process the parties can together assign values. If they can’t agree on value, they can together choose one or more appraiser(s) to assign value(s) and decide how they want to use those values. Most important, the parties can, with the help of the collaborative team, decide who gets what and in what proportions: one party might get more of one asset and less of another, or it will be a 50-50 split of all property, or that one party will stay in the house for a period of time and that it will then be sold, or any number of creative solutions that make sense for your family.
When you and your spouse focus on your respective needs and interests, as you will in the collaborative process with the help of your collaborative team, you can reach unique solutions that are individualized for your family. As much as a judge may want or try to do that, he or she is unlikely to reach a result that is exactly right for your family. And you will have spent a lot of money in the process.
Choose collaborative divorce.
Deciding upon and transitioning property in divorce can be daunting. Certain divorce processes support a better planned transition than others. To learn about your Missouri divorce process options contact one of our experienced St. Louis Collaborative Law professionals today.
Cynthia Garnholz is a St. Louis family law attorney, collaborative law professional and trained mediator. She is experienced with helping one or both spouses achieve settlement. To learn more about your Missouri divorce options give her a call or visit her website.