The court will require both parties to complete a Financial Disclosure Statement (FDS) that discloses all income, assets, and debts. The Financial Disclosure Statement will be a basis from which the court divides the marital estate.
Marital Estate includes all property of either party, whether acquired before or during the marriage. The only property that is exempt from the marital estate is property acquired as a gift from a third party, inherited property, and property designated individual by a Marital Property Agreement. However, if these assets have been commingled with marital property, the assets might be divisible as part of the marital estate. Dealing with commingled property can become very complicated and may require the assistance of an experienced family law attorney.
Marital assets include, but are not limited to, bank accounts, retirement accounts, pensions, life insurance policies, stocks, bonds, real estate, business interests, automobiles, recreational vehicles, personal property, and household furnishings.
Marital debts are all secured and unsecured liabilities and debts acquired before or during the marriage.
Attorneys will often create what is known as a martial balance sheet (MBS) to assist in achieving an equitable division of the marital estate. The marital balance sheet will include all marital assets and debts of the parties, and assign these assets and debts to the parties. The court shall presume that the marital property is to be divided equally. In order to deviate from this presumption, or to order an unequal division of the marital estate, the court must consider all of the following factors:
- The length of the marriage.
- Property brought to the marriage by each party.
- Whether one party has substantial assets not subject to division by the court.
- The contribution of each party to the marriage, including economic value of homemaking and child-care services.
- Age and physical and emotional health of parties.
- Contribution of one party to education, training or increased earning power of the other.
- Earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
- The desirability of awarding the family home or the right to live therein for a reasonable period to the party having physical placement for the greater period of time.
- The amount and duration of an order granting maintenance payments to either party, any order for periodic family support payments and whether the property division is in lieu of such payments.
- Other economic circumstances of each party, including pension benefits, vested or unvested and future interests.
- The tax consequences to each party.
- Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are equitable as to both parties.
- Such other factors as the court may in each individual case determine to be relevant.
The court can also consider the wasteful spending and depletion of marital assets caused by a party. this includes assets that were transferred or sold for inadequate value, property that was given away, or squandered on gambling, drinking, or use of illegal drugs.
Once a final order is entered regarding property division this order cannot be modified. In rare circumstances, a final divorce judgment may be reopened by a request for relief from judgment.
If you have questions regarding maintenance or modifying a maintenance order, contact one of the experienced family law attorneys at Lawton & Cates.