Dividing Up Martial Property Is Not A Mathematical Calculation

By: Barry Roche
Submitted: 2007-01-17 16:23:54
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One of the very first rules students are taught at Law School, when it comes to a marital property settlement, is that a person's entitlement is NOT a "Mathematical Calculation"! In other words, you normally can't just apply a set formula to work out what you are entitled to when it comes to dividing up marital property. Your well-meaning friends may say that you're entitled to 50%, 60% or 70%, based on what occurred with someone they know or on what this person says "is the law". If you want to know what your legal rights are, ask an legal expert - not the next door neighbour.

While the laws dealing with dividing up marital property vary widely from State to Country, a court is usually required to take into account a whole range of factors in determining a marital property settlement in a divorce. For example, the court is often bound, by law, to consider the age of the parties, the duration of the marriage, property contributions before and during the marriage, the state of health of each party, any disparity in income levels, assets received by testamentary disposition, homemaker and parent contributions, a party's financial resources and so on. Each case depends on its own merits and you would be wise to seek some initial legal advice - pertinent to your marriage and your situation.

However, lawyers can be as much a hindrance as a help. They're ALL expensive and you don't want the lawyers ending up with most of the "matrimonial cake". The more emotional you are (as against being objective), the higher your legal bill is likely to be! Common sense and reasonableness, combined with sound legal knowledge as to your rights, will usually result in a better outcome for you.

Here are some things to keep in mind: -

1. Marital Property can have a much wider meaning than is commonly understood. Eg. Life Insurance Policies, present Pension Entitlements, Superannuation/Retirement Funds, royalty rights, a business, shares, & so on.

2. Matrimonial Liabilities extend to unpaid debts or future debts, including any possible income tax liabilities. These must be taken into account so as to ascertain the "net value" of the matrimonial estate.

3. A 50 - 50% division of marital property is probably NOT appropriate where there are children (under 18 years) of the marriage, even if both parties’ contributions have been equal.

4. As a general rule, one spouse has no more entitlement to keep the former matrimonial home than the other. It is often better to try and retain it yourself though but NOT if you can't afford to!

5. Don't take ANY notice of what your divorcing spouse tries to tell you about the law. Ignore "Bluffs" such as "I've got the best Divorce Lawyer in town" or "You'll never see a red cent" or "you left me so you aren't entitled to anything".

6. Don't overlook child support and/or alimony. Also make sure that you fully appreciate the implications of any lump sum component that may be "allocated" as part of the property settlement.

7. Statistically, men are traditionally still financially better off than women (on average), even where the man has received less than 50%! The primary breadwinner in marriages has predominantly been the husband, with the wife having been the primary caregiver to the children. A good income stream allows a party to "get back on their feet" whereas little or no income stream does the opposite!

8. Make sure you understand what you are agreeing to BEFORE you agree to it. By this we mean - understand how you will be affected by what you agree to.

9. Consider this question carefully - " Will you be financially secure if you agree to what the other side wants?" A Property Settlement Agreement is usually final!

10. Seriously consider resolving property settlement through conciliation, mediation or even arbitration, whether any Family Law litigation has commenced or not. Remember, you know your spouse better than the lawyers and which approach is more likely to work. One exception to this is where you have been a victim of domestic violence - it's time to stop being a victim and stand up for your rights!

Barry Roche is the founder of The Self-Help Club (http://www.self-helpclub.com) and the author of the ebook, “How To “Win” When Facing Divorce”. He is a former Family Law Specialist who wrote this book specifically for women. The book is available for purchase at http://www.divorceandwomen.com/help.html. Barry is also the author of a 90 page Manual on “How To Beat Your Financial Worries When You Don’t Have A Job” (also available for purchase at http://www.divorceandwomen.com/bookstore.html).

Article source: Expert Articles