The first step in dividing everything up
How do you do it?
If your affairs are simple and money is tight, you can do it yourself.
You can go see a lawyer, or you and your spouse can spend time together with a divorce mediator.
You can usually save money and produce a much more thorough inventory using a financial preparation kit for divorce.
You can always go through formal discovery.
The first thing you need to know about how a judge would divide everything up is that it’s usually S – L – O – W.
In many jurisdictions, although your case might be set the first time relatively quickly, a succession of continuances (delays) might push back your actual trial for a year or more.
Ask your lawyer how long it takes. You’ll probably get something like “That’s hard to say. It depends on how complex your case becomes, how easily you reach agreement with your spouse, and just luck of scheduling.” You can then ask, “How long after filing did the last five trials you conducted actually take place?” That’ll probably get you a straight answer.
Nationwide, something like 90% of divorcing couples reach agreement and never take their case to trial. If at all possible, you want to be in that group. And you’d like for your agreement to come sooner rather than later, so you can save that money you would otherwise spend on lawyers and spend it on your kids. Or yourself.
But to negotiate the best settlement, you need a good idea of how a judge would divide everything up if you and your spouse were standing before the judge lobbing grenades at each other. Every state has different law on this issue. Here’s how they break down:
- Mississippi is the lone state that bases property division in divorce on who holds legal title. If the property is jointly held, it gets equitably divided.
- Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are community property states. In general, this means that property either spouse owned before marriage and the income it has produced are separate property. So are separate gifts, inheritance, property accumulated after separation. Property accumulated during marriage is to be split equally.
- All other states (including the District of Columbia) use some form of equitable distribution, meaning the property division should be fair, and it should be equitable, but it’s not necessarily equal.
Typically, the two assets that receive the most attention in divorce are the house and the retirement plans. It’s also not unusual for divorcing couples to spend a lot of time and money arguing over a particular piece of furniture or a particular gift in the household, because one or both of the parties have tremendous emotional energy tied up in them.
In many states, it’s not unusual for a judge to give the house to the party who’s going to have custody of the children, even if that results in an uneven allocation of value. Judges get creative when it comes to houses.
Retirement plans are another issue that generates tension, because the spouse who owns the retirement plan typically doesn’t have any idea that the plan might be marital property and available for sharing with his or her spouse. If the plan benefit needs to be shared, your attorney will need to prepare a document called a Qualified Domestic Relations Order. It’s abbreviated “QDRO,” and people usually pronounce it “QUAD roe.”
If either of you has an interest in a family business, you’ve got some troublesome issues to resolve. Because there are so many issues revolving around dealing with the family business in divorce, I’ve provided a separate page on it.
Nearly all of us have vehicles, usually cars. We usually don’t give them a lot of thought, but there can be real value there. So there’s a separate page here just for vehicles.
When it comes to household items, there’s almost never a reason to get anybody else involved in how you divide them up. The value typically isn’t enough to make it worth the time and expense of getting other people involved, and in most cases, nobody knows better than the two of you how best to divvy everything up. If you just cannot agree on some of the items, at least see if you can’t agree to a list of them. Then you and your spouse can sit down with that list and just take turns choosing which item you want. It’s painful, but it will get the job done if nothing else works.