The process of distributing marital assets can be very complex and time-consuming. This is especially true in states that are not community property states (this encompasses all but ten out of 50) since it is necessary to assess not only the real property such as real estate that the couple holds jointly but also any other assets that may be wholly or partially a part of the marital property. Under no circumstances should you attempt to handle such a complex matter without the assistance of a divorce lawyer.
In order for each party in a divorce to receive a fair and equitable settlement there is a need for a valuation of all marital assets before a final property settlement can even be submitted to the couple for approval. In community property states the process is much easier because the law assumes each party owns a 50% interest in all assets on the day they marry unless there is a prenuptial agreement. There are a few circumstances even in community property states that allow for separate ownership of property such as:
- Assets either party receives as a gift for their sole use
- Assets obtained through an inheritance
- Money deposited in an account for a minor—this asset is considered the property of the child and not part of separate or marital property even though marital funds may be used to increase the asset's value
- Any assets owned prior to the marriage that increase in value on their own merit and not because of the addition of marital funds (for instance an IRA either owned prior to marriage remains the property of the owner as long as no marital funds cause the asset to increase in value)
Hiring a divorce lawyer to walk you through all the divorce steps provides protection for both parties in the divorce. Each prospective party in the divorce needs a divorce lawyer who has the expertise to create a balance sheet that shows the value of all assets martial and non-martial. This allows the assignment of an equitable settlement that is based on the earnings or earning capacity of each party such as the wife who has spent most of her married life caring for the home and family. In this case the wife is likely to receive a higher percentage of the marital assets than the wife who held a job outside of the home. However, only a divorce lawyer has the knowledge and expertise necessary to assign a fair value to each asset in order to prepare a fair and equitable property distribution.
Keep in mind that the lawyer must have all the records related to all marital property purchase each party made before and during the marriage in order to determine both value and separate marital and non-marital assets. If there is a jointly held business entity the divorce lawyer must assign a value to each of the party's individual ownership interest in that asset even if the couple plans to continue to operate the business jointly as an undivided asset.