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PROPERTY DIVISION AND DEBTS

It is critical for the client to tell the attorney all that is known about all property.  The more information given, the more assistance you will be able to get.  Property includes assets and liabilities, real estate and personal property, and tangible as well as intangible things.  It can be houses, pensions, businesses, coin collections, stock, bank accounts, and frequent flyer miles, season tickets to sporting events, almost anything.  The courts have set out criteria for equitable division of property including debts of the parties in a marriage.  Equitable division is often referred to as a division of property based upon the circumstances of the parties, their marriage and the break up of such marriage.  

First, it is important to place upon the opposing party a duty to divulge any and all property he or she might have acquired.  Unfortunately, one spouse may not have mentioned a secret account or asset to the other and therefore an attorney must find and value the property (equity in the house, pension benefits, antique furniture, bank accounts, etc.).  Once all the property is known, there must be a determination whether the particular piece of property is "non-marital property" or "marital property".  Non-marital property remains with the person who owned it and is not subject to division by the court.  Non-marital property (also called separate property) is usually acquired before the marriage or if acquired during the marriage, was acquired by gift (from someone other than your spouse), or inheritance.  Marital property is usually acquired during the marriage.  To determine who gets what marital property, the court may consider:

        Length of the marriage;

        Any prior marriage;

        Age, health, skills, occupation, employability and abilities of the parties;

        Amount of separate property owned by each spouse;

        Relative ability of the parties to acquire property in the future;

        Financial needs and liabilities of the parties;

        Contribution to the education and earning power of the other;

        Contribution to the value of the marital or separate property;

        Pre-marital property and post-marital property;

        Financial conditions of each party;

        Tax consequences; Allowing the custodian and children to continue to live in the home permanently or for a period of time (most often until remarriage of the custodian or until the children turn eighteen); and

        Other factors that the court considers appropriate.

If you and your spouse can agree on how things will be divided, and if your agreement is reasonable, it will in almost all cases be approved by the court.  If you cannot agree, the court duty is to divide the property upon equitable principals.

Despite an agreement for one spouse to pay a debt that is in both parties' names, if the party responsible for the debt under the divorce decree does not pay the debt the other party can still be sued for the debt by the creditor.  For example, the wife gets the house and the husband agrees to pay the mortgage.  The husband dies or goes bankrupt.  The wife may or may not be able to sue the husband or his estate.  In any case, the mortgage company may be able to foreclose and/or sue.  The best way to protect the wife in this case would be for the husband to refinance the property and remove the wife from the debt, if possible.  Sometimes this is financially impossible for large debts such as houses, but it can still be done with smaller debts, like second mortgages, auto loans and charge accounts.

If you are considering hiding assets - DO NOT.  Usually these assets are found, and if they are found, you will look like a crook to the court.  The judge will have trouble believing what you say about anything after that, and will not have much trouble assessing attorney fees against you for your behavior.

 

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