Equitable Property Division Strategies

While many clients are focused on what percentage of the marital estate they receive, the overall percentage can be less important than the type of asset received.  The parties can often overlook elements of liquidity, costs of sale or transfer and tax effects.  These factors are 10.1 and 10.2 of the statutory list of factors to be considered by the court when dividing the estate of the parties.  When considering their alternatives, parties can and frequently will consider all assets as belonging to the same "class" or category. 

Consider two examples:

1. A divorcing couple owns a home worth $250,000.00 today with a mortgage balance of $100,000.00.  If you represent the spouse who wants to keep the home, what are the considerations?  If you represent the spouse who doesn't want the home?


2. The parties have a marital residence with $100,000.00 of equity and one spouse has a 401(k) with a marital value of $100,000.00.  Are these assets equal?

Divorcing spouses also have to consider intangible factors surrounding their marital estate: the marital home, their retirement benefits, and the source of the asset (family gift or sentimental value).