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Divorce Mediation: Marital Property

The division of marital property can be a crucial, challenging and emotional issue in a divorce.  Many issues come into play while dividing property.  The determination of what constitutes the marital estate, the financial situation of each spouse, the length of the marriage, the standard of living established during a marriage, the income and earning potential of each spouse and the needs of children are just some of the factors which need to be considered in order to reach a fair and equitable division of property.  Mediation aids parties in making fair decisions regarding these issues in a collaborative, non-adversarial way.


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    How Divorce Mediation Can Help

    Mediation allows divorcing couples to settle matters regarding property division without court intervention, thus allowing couples to retain more control over the manner in which their assets and property are divided.

    Divorces rarely go to trial.  In general, judges do not want to hear divorces or listen to couples vent about personal issues.  Divorcing couples do not want to incur the financial cost or endure the emotional expense of trial.  As a result, judges often throw all marital assets into a “pot” and divide the pot in half.  Mediation gives parties more control over how that “pot” gets divided.

    In addition, mediation is private, confidential, faster, and fairer than going to trial.  It empowers the parties to take control of their futures and prevents the need for a judge to impose a decision that may or may not meet the needs of both parties.

    How The Divorce Mediation Process Works

    All domestic relations cases except those involving domestic violence are subject to facilitative mediation and most judges will require the parties to attempt to mediate prior to trial.  In fact, most divorce cases are settled and property division is usually something agreed upon by the parties.  Although a judge must approve any property settlement reached by the parties, he or she rarely questions the terms of a property settlement agreed upon by the parties.

    Unlike the adversarial nature of litigation, mediation involves mutual problem solving whereby the parties identify issues, generate options and come up with solutions they believe best resolve the conflict.

    First, the parties identify the property available for division. Things to consider include the marital home, household furnishings, personal property, other real estate property, pensions, profit sharing, IRAs and other retirement plans, stocks, debts and liabilities, business interests and tax refunds.  If one party believes the other party has not disclosed an asset, he or she can ask the court to have the party produce documentation through a discovery process.

    Next, the parties assess the value of the property.  During this stage, parties are encouraged to work with experts in the field or have their property appraised.

    The third step involves identifying which property is marital property and which is separate property.  Marital property is usually property acquired during the marriage. Generally, it does not matter who earned or saved it, nor does it matter who has the title to the property.  This can be an issue with things like retirement accounts. Non-marital property is property that was owned by a party before the marriage, or property that was acquired through gift or inheritance.

    Gifts and inherited non-marital property can become joint property in certain situations.  Parties are encouraged to seek the advice of an attorney if these types of property constitute a significant amount of the marital estate.  Normally, a premarital asset, gift or inheritances of one spouse may be included in the marital pot for division if, either 1) the other spouse contributed to the acquisition, improvement or accumulation of the property, or 2) the marital property is insufficient for the other spouse’s suitable support and maintenance.

    The fourth step is for the parties to decide what percentage each will receive.  Net worth is usually divided 50/50 but judges do have discretion to divide property unevenly.  Some factors to consider are:  the source of the property, the parties contributions toward the acquisition of the property, the general marital estate, the duration of the marriage, the needs and circumstances of the parties, the ages, health, life status and earning abilities of the parties, the cause of the divorce, general principles of fairness, and the interruption of the personal career and education of either party.

    Finally, the parties will decide who will receive each asset or debt responsibility.

    Successful Divorce Mediations

    There are many options available to parties when determining how to divide their marital assets. Successful mediations involve parties that are willing to create ideas, brainstorm options, negotiate and compromise.  Typically, neither party will leave a successful mediation feeling completely satisfied.  However, each party should leave feeling his or her needs have been heard and met.  After coming to a resolution of some or all of the issues, the parties, with the aid of the mediator, will create an Agreement of Understanding that cannot be changed without the approval of both parties.