Property of the marriage is to be divided equitably. Generally, this means that property of the marriage is divided 50-50. Fault may affect this distribution.
The parties usually arrive at a settlement of all their property rights after negotiation or after mediation. If a settlement is not reached, the matter will be decided by the court or, if both parties so choose, by an arbitrator, after the trial is concluded.
Once a settlement of property issues has been written and signed or placed on the record in open court, it may not be modified, except in cases of fraud, clerical error, mistake, or gross unfairness in the initial trial.
In order to devise a property settlement, we must understand the value of each of the assets that are in the marriage. This includes, but in no way is limited to, your home, any second or additional homes, any other real property interests, any interest in a business by you and your spouse, vehicles, stocks and other investments (mutual funds, stock options, etc.), retirement assets (IRAs, 401Ks, pension plans, deferred compensation plans, etc.), bank accounts, safety deposit boxes and valuable artwork, antiques or other such collections. We must also know the extent of any liabilities.
If either spouse has any interest in a business, then we may retain the services of an expert in the area of business valuations to assist in placing the correct value on this important asset.
If your property includes retirement or pension plans, I will explain how interests in such plans are divided as well as your rights under the qualified domestic relations order procedures.
Property settlements in judgments may be enforced by execution, garnishment, show cause proceedings, etc. If relevant, I will explain these procedures to you.
In determining property issues, the court will usually consider the following:
- the length of the marriage
- the contributions of the parties to the marital estate
- the ages of the parties
- the health of the parties
- the life status of the parties
- the necessities and circumstances of the parties
- the earning abilities of the parties
- the past relations and conduct of the parties
- general principles of equity