Property Issues

Cindy Best

Characterization of Property

The first thing to decide is the character of the property. If it is community, it can be split 50-50. If it is sole and separate, it is yours and does not need to be divided. At the end of the divorce, you will want to divide the community property approximately equally. This includes the house, furniture, cars, boat, bank accounts, savings, stocks, investments, pensions and debts. You also need to be aware that each spouse has an obligation to disclose all property under the Rule of Family Law Procedure 49. Hiding assets will not be treated kindly by the court. Even sole and separate property must be disclosed, so the other spouse has an opportunity to determine if it really is sole and separate.

Property Worksheet

First, list all your property. You can find a complete worksheet that can be purchased on our website, www.bestlawaz.com. It will be very helpful for you to fill this out as you get started. You need to first identify all property, regardless of whether you think it is community or sole and separate. Then, after you identify all your property, you can review the statutes and the Question and Answer section to determine how you and your spouse would like it to be divided. You can return to the worksheet and fill in how you think it should be fairly distributed. You and your spouse can each fill out a worksheet, or you can fill it out together.

Resolving Your Property Issues

The House

Is it community or sole and separate? If it is sole and separate, does the other spouse have an interest in it? Here are some questions to answer:

Whose name is on the deed?

Did you and your spouse purchase it during the marriage?

Where did the money come from for the down payment?

If the house was purchased during the marriage with money from the marriage, such as money from your jobs, it most likely will be considered community property and will be divided equally.

Who, if anyone, wants to live in the home during the divorce?

Do you want to sell the house, either because neither party can afford it or because neither party wants to live there?

If the House is Community Property

There are several options that you can consider:

Option 1: One spouse stays in the house and makes all the payments; the parties get the house appraised and decide the value of the house. Then the party who wants to live in the house pays the other spouse half the value of the house. This can be paid with cash in a refinance or can be ?horse-traded? with other assets.

Option 2: The parties can sell the house and split the proceeds equally. The parties can split the costs of upkeep until the sale, or they can decide that one party lives there and makes all payments until the sale. Or, one spouse could move out and then combine all living expenses, with each paying half of those total expenses or each paying their prorated share, according to each party?s income.

Option 3: One party stays in the house for a predetermined amount of time, such as one to two years, until a refinance must be undertaken.

There are a number of creative ways to determine the division; it is limited only by imagination and the ability to cooperate. The end goal is to split the proceeds 50-50 and not make the process more difficult than it needs to be for either party.

If the House is the Sole and Separate Property of One Spouse

If only one spouse?s name is on the deed, or if one party owned the house prior to marriage, it might be considered that spouse?s sole and separate property.? This can become a complicated legal issue and you should seek the advice of an attorney if you have any questions.

Personal Property

Vehicles: Usually spouses have driven one vehicle and that is the one they want to keep. There may be an adjustment if one vehicle has a greater value than the other. For instance, if the truck has an equity of $10,000 and the SUV has an equity of $20,000, one person has $10,000 more value than the other. The truck spouse is due an additional $5,000 on his/her side of the ledger (the vehicles together equal $30,000 so each spouse should get a value of $15,000; the truck spouse only has $10,000 in value, so is due an additional $5,000).

The Furniture

HERE ARE SOME WAYS TO DIVIDE YOUR PROPERTY:

Idea #1: Using your list, have a ?draft,? where one party chooses, then the other, until the list has been divided.

Idea #2: Each party discusses what they want and then split the rest as above.

Idea #3: One party writes down all the community property two separate lists. Then the other party picks which list they want.

Idea #4: The property is appraised (garage sale value) and then one party pays the other.

Idea #5: Just talk and work it out. This too, can be horse-traded with other assets if one party really wants certain property. Remember that used furniture is not that valuable; it is not worth the amount you purchased it for. One of you might want or need more furniture than the other and you could exchange it for the extra value of the vehicles. In other words, you get half the pie, but you can negotiate what pieces make up your half.

Bank Accounts, Savings Accounts and Investment Accounts

If these accounts were opened and contributed to during the marriage, they will be considered community. If one spouse had an account before marriage and did not commingle community funds, it will be sole and separate property of one spouse. If there are complications, this may be a question for an experienced family law attorney.

Are you ready for a consultation? GET CONSULTATION