Sunday, February 18, 2007

Property Division

Every case involves the division of property. Some people do not realize that they have property. Property is stuff. The value need not be great but there is a need for dividing this between you and your spouse. All too often clients do not want to think about their belongings but want only to be rid of their spouse. Think about the cost of replacing the things you do not want to "fight over" and ask your self if you can really afford not to get your 50-50 split. This is the principal reason I will tell you that you need to get your half and advise against cutting off your nose to spite your face.

The law presumes a 50-50 split of property. This means that there is no fighting over property unless you deserve or your spouse wants more than 50-50 split. This also means that neither party can take the other to cleaners without rebutting this presumption. The law sets out how to rebut this presumption. The party wanting more than 50% of the marital property must show that a 50-50 split is unjust and unreasonable using these factors:

(1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
(2) The extent to which the property was acquired by each spouse:
(A) before the marriage; or
(B) through inheritance or gift.
(3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.
(4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
(5) The earnings or earning ability of the parties as related to:
(A) a final division of property; and
(B) a final determination of the property rights of the parties.
Marital property includes property "(1) owned by either spouse before the marriage; (2) acquired by either spouse in his or her own right: (A) after the marriage; and (B) before final separation of the parties; or (3) acquired by their joint efforts." Notice that you and your spouse must own the property to be divided. One type of property where the ownership may not be clear involves retirement benefits. Unless the retirement benefits have vested, there is no ownership.

The court has several ways to divide property. It can divide by kind - there are two cars and so one goes to you and the other to your spouse. If there are retirement benefits, the court can order them distributed between you and your spouse. Then, too, the court can order the property sold. Lastly, the court has the power of "setting the property or parts of the property over to one (1) of the spouses and requiring either spouse to pay an amount, either in gross or in installments, that is just and proper." Whatever method the court uses must be just and reasonable. The court must take into consideration the tax consequences of any property division.

One other tool available to the court in property division is set out in this statute:
If the court finds there is little or no marital property, the court may award either spouse a money judgment not limited to the property existing at the time of final separation. However, this award may be made only for the financial contribution of one (1) spouse toward tuition, books, and laboratory fees for the higher education of the other spouse.

I have not seen it used but the law is there as limited as it is to cases with little or marital property and for the spouse receiving the money who is attending a school of high education.

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