A divorce judge begins the division of assets process by having each party to identify their individual and joint assets and debts and identify a value for each. The couple can identify the total net value of their assets by adding the total value (either on their own, or with the help of an attorney) and then subtracting any debt. At a trial, the judge will verify the facts based on witnesses and documents.
However, the resulting division is not the end of the discussion. The judge can, for reasons of fundamental fairness, determine that there should be a “deviation” or “adjustment” away from the 50/50 division.
Reasons for a deviation might include:
- One spouse’s credits from premarital or gifted/inherited assets take up most or all of the marital estate (meaning the other spouse would be left with very little or nothing)
- One spouse made improper transfers of marital funds in contemplation of the divorce without informing the other spouse
- One spouse “wasted” assets when they were separate (although there is an extremely high standard to show that actions by one spouse were not inadvertent, negligent or intentional inadequacies, failures and wrongdoings, financial or otherwise)
- One spouse has no, or very limited, future employment prospects after divorce
- One spouse failed to disclose substantive financial information during the divorce process
- One spouse filed for bankruptcy to gain a financial advantage during the divorce
Some arguments that are not recognized as valid reasons for deviation from the 50/50 division include:
- The spouses operated their finances as if they were not married
- One spouse alone purchased an asset following the filing of divorce physical separation
- A short marriage
- A marriage in which one or both spouses were unhappy
Regardless of your specific situation, the family law division at PMK, led by Senior Associate Seth Harris, is available to guide you through a seamless division of property.
