Nolo's Essential Guide to Divorce - Emily Doskow [105]
Social Security ........................................................................................................................... 281
Money Now and Later .............................................................................................................281
ividing your property, just like everything else in your divorce, can be done the hard way or the easy way. And again, the easy way working it out with your spouse instead of duking it out in court is the recommended course. Try to remember that your stuff is only stuff. Some of it may have sentimental value, but it's a good idea to avoid fighting even over that. Trying to "win" the financial part of your divorce will cost you much more, in the long run, than putting your energy into figuring out what is fair and workable for everyone.
You're in Control
Before looking at the nitty-gritty of how the law views property division, remind yourself that you can divide your property however you want to, if you and your spouse can agree. You are in total control of the property division-all you need is the court's approval once you've made the decisions and written them up properly. And the judge will approve any reasonable division of property the two of you come up with.
You have the same options when it comes to negotiating your property division that you have when it comes to making decisions about your children. You can:
• work with your spouse directly
• work with your spouse through mediation
• use collaborative attorneys to help you negotiate, or
• fight it out using lawyers who represent you in a contested case, and let a judge or arbitrator decide.
This chapter tells you how a judge might divide your property if you went to trial. You can use it to help you figure out what seems fair in your own divorce. But you and your spouse might well agree on something quite different, because you factor in things that are personal, not legal. For example, maybe your only valuable asset is your home. If you're the primary caretaker of the children and you and your spouse want it to stay that way, your spouse might agree to a buyout figure that's less than half the value of the house so you can stay there with the kids. This would be perfectly acceptable to a judge reviewing your settlement agreement.
Negotiating a property settlement is not easy, but don't sell yourself short just to get it over with. Take the time you need, get as much help and advice as you want, and consider all your alternatives before making decisions.
If you don't know where to begin negotiating. Especially if you have a wide variety of assets and a long marriage where spousal support is likely to be an issue, an expert called a divorce financial analyst can be a big help. A divorce financial analyst can sit down with you, as well as your spouse or your lawyer, and help you consider all the different possible scenarios for dividing your property, advising you about the pros and cons of each. Chapter 16 has more.
How Judges Divide Property
How a judge would divide your property depends on where you live. For purposes of property division at divorce, there are two kinds of states: community property and non-community property states.
Spousal support is a whole other ballgame. Spousal support is a separate issue from property division, and it's dealt with in Chapter 11. Property division can affect support, however. Property is divided before support is set, and a spouse who gets a large share of the property might not also be awarded spousal support.
Community Property States: Equal Division
Only nine states use community property rules, which provide that most property acquired during a marriage belongs to both spouses unless a couple agrees otherwise.
Community Property States
* In Alaska, you have community property only if you and your spouse signed an agreement creating community property rights.
The theory of community property is that during the marriage, property is owned equally, and at divorce it must be divided equally unless the parties agree otherwise.