How to Divide Your Personal Property in a Divorce

How to Divide Your Personal Property in a Divorce

In a divorce, you and your spouse will need to divide up your combined personal property, including household furnishings and automobiles, equally — or as close to equal as possible. If you and your spouse plan to try to divide your property yourselves, here are some tips to get you started.

Steps to Take

The process of dividing your personal property in a divorce can be broken down into a few simple steps.

  • First, make a list of all of the items that you own.
  • Next, figure out which items are community property and which items are separate property. (The items that are categorized as community property will need to be divided, while each spouse will keep his or her separate property.)
  • Then, determine a value for each item that falls under the category of community property.
  • Finally, take turns stating which items you want from the list of community property until each spouse has reached half the value of the list.

Assigning Values to Your Household Items

The category of household items typically includes furniture, kitchen items, books, linens, and so forth. Dividing these items fairly between spouses can problematical, particularly since you have to put a valuation on each individual item or set of items.

Generally, the standard for valuing household belongings is the fair market value if you sold the item “as is” in its current condition. There are several ways to go about determining the fair market value of your belongings.

  • You can confer with your spouse and decide on a valuation for the items together.
  • You can look on Internet sites, such as eBay or Craigslist, to see what others charge for similar household goods.
  • You could also go to second-hand stores, such as Goodwill, and see how comparable items are priced.
  • Alternatively, you may hire an independent appraiser to set values for your household items.

Remember that most items decrease in value significantly after they have been purchased. That bedroom set that you purchased together five years ago for $2,000 is probably not worth a whole lot today, perhaps only a couple hundred dollars.

Tips for Dividing Up Certain Sentimental Items

Some items bring up more emotions than others and can be difficult to value and divide. For example:

  • Wedding gifts. Usually the easiest way for spouses to divide up wedding gifts is to agree to keep the gifts that were given by that spouse’s family or friends.
  • Photos. Often, both parties want to keep the family photos. If you both want the same photos, make copies and split the cost.
  • Other sentimental items. While other sentimental objects, such as your child’s artwork, do not have actual monetary value, deciding who gets what can be very upsetting for most parents. It is often best to simply take turns choosing among the items.

How to Assign a Value to Your Vehicles

Vehicles, as opposed to household goods, are considerably easier to value. This is because there are only a few variables that affect the value of a car, such as the exterior condition, interior condition, mileage, and mechanical condition.

The easiest way to value your vehicle is to refer to the Kelly Blue Book or the National Automobile Dealers Association (N.A.D.A.) Used Car Guide. You can find a version of these guides online at www.kbb.com and www.nadaguides.com, or you can purchase a copy of either guide from booksellers such as Amazon.com. If the guides provide different values, average the amounts and use that as the valuation.

One issue to note is that the Kelly Blue Book and NADA Guide do not take unrepaired mechanical problems into consideration when assigning a value to a vehicle. If you have a car with existing mechanical issues and want to determine the proper valuation, you can take the vehicle to a mechanic who will provide an estimate of what it would cost to repair it. Then, subtract the estimate from the vehicle’s value as stated in the guide before including it in the marital estate.

Items That Are Not Part of the Marital Estate (Separate Property)

Certain items are considered a spouse’s separate property and do not have to be valued or divided up in a divorce. For example, if your spouse received a piece of jewelry in 2010 from her mother that she always wears (say a diamond ring) and you were married in 2011, that ring would not be considered marital property. Rather, it is your spouse’s separate property because it was given to her exclusively, she received it before you were married, and it was kept separate.

In addition, some things that are acquired during the marriage may be considered separate property depending on where the money used to purchase the item came from. For example, if you inherit money during the marriage, then that money is your separate property. Also, whatever you buy with the inherited money becomes your separate property as well. Let’s say you inherit a large sum of money that you use to purchase a piece of undeveloped land in wine country. This would be considered your separate property.

When you are deciding if a particular item is community or separate property, look at the source of the money used to buy the item. (If you have any doubts or questions in this area, an Oceanside divorce attorney can advise you about which of your belongings are marital, and which ones remain separate.)

Disclosing Your Assets

In a divorce, each spouse must disclose all of his or her assets and debts (community and separate) to each other. The key thing to keep in mind is that you should be completely honest and be sure to disclose everything of value that you own. If you conceal anything, it will probably come out sooner or later and the penalties can be serious.

A divorce attorney can help you in determining a fair way to split your belongings. If you are considering divorce and want to learn more about how to value your assets or have any other questions pertaining to divorce, call the Oceanside divorce attorneys of Fischer & Van Thiel today at 760-722-7646.

 

 

 

 

 

 

Mike's Top FAQs About Divorce

How is a military pension divided in a divorce?

How is a military pension divided in a divorce?

Divorce proceedings are conducted by state courts and they can divide military pensions. The federal Uniformed Services Former Spouses’ Protection Act (USFSPA) allows (but does not mandate) state courts divide military retirement pensions upon divorce, legal separation or annulment.

How much of the pension gets divided?

The share of a pension to the non-military spouse could be as low as nothing or as high as half.

  • The non-military spouse might get 50 percent of the pension only if the marriage lasted the service member’s entire military career.
  • If the marriage lasted for part of the military career, the pension division will probably be prorated to reflect the time the spouse served in the military.

How an ex-spouse gets paid?

The USFSPA has a 10/10 Rule which states that if the couple was married for ten or more years while a spouse performed at least ten years of service, the government will make payments directly to the ex-spouse.

If this rule doesn’t apply, but the non-military spouse is awarded a portion of the pension payments, the service member gets paid the entire amount but will be obligated to the correct portion to the ex-spouse.

Another way to get paid is to have an actuary evaluate the military spouse’s pension to determine its current cash value. The military spouse would then give the other spouse an equivalent value in cash or non-marital property, leaving the military spouse with exclusive rights to the pension.

Posted in: Divorce, Family Law, Military Divorce, Property Division

How are disability payments to a military veteran handled in a divorce proceeding?

How are disability payments to a military veteran handled in a divorce proceeding?

The federal Uniformed Services Former Spouses Protection Act (the “USFSPA”) permits divorce courts to award ex-spouses of service members part of “disposable retired pay” (the retired pay available (after necessary deductions) based on salary and years of service). How that’s divided is decided by an agreement between the parties or by the judge.

  • Under the USFSPA, military disability pay is not “disposable retired pay” and is not subject to division in divorce.
  • If a service member waives retired pay in order to get disability pay, an ex-spouse can lose out on hundreds or thousands of dollars which they might have received.

There are two kinds of military disability pay and both are excluded from the USFSPA definition of disposable retired pay:

  1. Military Disability Retired Pay: This is for those are disabled such that they can’t perform their military duties.
  2. VA Disability Compensation: This type of compensation from the Department of Veteran’s Affairs (VA) covers injuries or disabilities that occurred while on active duty, or which were made worse by active service, including service related (not necessarily combat related) mental or physical injuries.

To get these VA benefits, a service member must waive a certain amount of retired pay. If this is done, the amount waived is subtracted from the amount available to the former spouse.

Spouses can have some protections or take steps to get the maximum payments:

  1. If there is a separation or property agreement, it should include a provision stating if the service member waives any retired pay for disability pay, the service member would make a monthly payment to the non-military spouse in an amount that makes up for the lost retired pay.
  2. If there is no such agreement and the divorce issues are being litigated, the judge can be asked to retain jurisdiction to order the military member to pay spousal support in the future, or to modify an existing alimony order based on any change in the parties’ circumstances. If retired pay is reduced because of disability pay, the non-military ex-spouse could request the judge to order the military member to pay spousal support (or increase it) to make up for the retired pay that’s been lost.

 

Posted in: Divorce, Family Law, Military Divorce

What is the Service members Civil Relief Act (SCRA) in a Military Divorce?

What is the Service members Civil Relief Act (SCRA) in a Military Divorce?

The SCRA was enacted in order to help protect service member’s rights if and when they are called to active duty. It protects regular service branch members, in conjunction with members of the Coast Guard serving on active duty in support of the armed forces, members of the National Guard when serving in an active duty status under federal orders, and Reserve members who are called to active duty.

The SCRA affords the right for any court proceedings to be put on hold, or provided a “stay” to postpone any administrative activity if a member’s active duty has an effect on their ability to proceed in the case.  This specifically applies to child custody issues as well and a stay of court and administrative proceedings would be afforded in order to protect the non-present spouse’s parental rights. The SCRA would be incredibly helpful if a spouse were to attempt to change the status of child custody while the service member is deployed.

A ninety-day stay is automatically granted when a service member requests this protection in writing. However, any further delay is decided at the discretion of the judge, hearing officer or magistrate that is assigned to the matter. This protection is not afforded nor does it protect a member’s invocation right for any criminal court proceedings.

There are also many individual state laws related to military child custody. Through the USA4 Military Families initiative, the DoD is partnering with states in order to further support military families. Specifically USA4 Military Families is striving to educate policymakers and ensure deployment separation does not determine child custody decisions.

Posted in: Divorce, Family Law, Military Divorce

What is a Family Care Plan for Child Custody in a Military Divorce?

What is a Family Care Plan for Child Custody in a Military Divorce?

As with normal civilians, military couples are presented with child custody issues if they are seeking dissolution of marriage. Members of the military are aware that active duty often requires time away from home due to deployments, training or frequent relocations. These factors may present custody issues, however there are ways to prevent or relieve some of the stresses that can evolve in a military divorce regarding child custody matters.

A Family Care Plan is highly recommended and sometimes required in order to clarify necessary details about the care of your child if a service member is called to active duty or deployed at no notice. Although most couples aren’t required to establish a family care plan, if you are or become a single parent due to death of spouse, separation/divorce, a service member can remain active but must meet the family care requirements of DOD – essentially requiring such members to have a “family care plan.”

A Family Care Plan is a set of documents describing who will care of your child during specific instances or if a military member is away on deployment or training. When it comes to a Family Care Plan there are some slight differences depending on the service, however most have three basic requirements: short-term care providers, long-term care providers, and care provision details. These support details include naming who will care for the child, financial details, medical specifications, and logistical considerations pertaining to food, housing, transportation, etc. These named care providers must be a non-military person, who agrees, in writing to accept the care of the member’s child or children. This person will also sign the Family Care Plan, indicating they consent and understand the responsibilities they are being entrusted with.

Posted in: Divorce, Family Law, Military Divorce

Can parents create their own agreement for child support?

Can parents create their own agreement for child support?

Yes, parents can stipulate their own agreement regarding child support, but it must be approved by the court. In order for the court to consider reviewing the agreement, it must meet the following guidelines:

  1. There must already be an open court case between the parents.
  2. The agreement must contain the following information:
    1. Each parent is fully aware of his/her child support rights.
    2. Each parent is aware of what the guideline child support amount would be.
    3. Neither parent is feeling pressured or forced to agree on the stated amount.
    4. Neither parent is receiving public assistance or has applied for public assistance.
    5. Both parents think that the agreed upon amount is in the best interest of the child.

After you have reached an agreement with the other parent and have created a stipulation consistent with these guidelines, you will both need to sign the document. If you do not have attorneys, your signatures will need to be notarized. You can then submit the stipulation for the court’s review. If you have a court date scheduled, you can bring the stipulation with you to the hearing for the judge’s review and signature, or you can go to the courthouse and ask to speak with a family law clerk to get it approved and signed.

After you have received the judge’s signature, you’ll need to file the original with the court clerk, and serve a file-stamped copy of the order on the other parent (or their attorney, if they have one.)

Posted in: Child Support, Family Law