As a Portland, Oregon divorce attorney, a lot of what I do involves helping clients figure out what they own, and the best way to divide those things. The ultimate goal of any property division in a divorce is to reach a just and equitable result. While this doesn’t necessarily mean that all divisions will be equal, they should be fair.
Generally, a divorce attorney will begin by identifying all assets of both parties to the marriage, which is what a judge must first do should the case proceed to a trial. For example, some property is considered personal property – this includes china received as a wedding gift, cars, and even the family pets. Many couples are able to agree on the division of personal property, and it doesn’t become an issue in the case. However, this is not always true, especially if the parties own expensive items with high resale values, such as jewelry, art, or antiques. The division of vehicles can also be an issue, especially if one person is driving the new Mercedes and the other person is limping along in the 15-year-old Honda.
Another type of property is real property. This includes the house the parties lived in together, as well as any second homes or rental properties. When trying to divide real property as an asset in a divorce, a number of factors come into play. For instance, is there a mortgage (or two)? Is there equity or is the house underwater? Are there small children who know the house as their only home? Answering these questions can help determine the best course of action for a particular family when it comes to real property decisions.
Assume two parties are relatively young, have good jobs and health, and have a valuable home with a good amount of equity, but don’t have many retirement assets to speak of. Assume that they also have three young children who have grown up in the house, and that both spouses don’t want the children’s lives to be disrupted any more than it already has been. In order to divide the only major asset the couple has, the couple could choose to sell the home, divide the proceeds, and go on their merry way. But this option doesn’t address the disruption in the children’s lives. Another option, then, would be to let the children and one of the parents live in the home until the children are grown, and then sell the property and divide the proceeds then. Of course, there are a number of other details that would have to be worked out, such as who pays the mortgage and how that will be factored into the eventual division of sale proceeds. This is just an example, but it shows that there is flexibility in the law to meet the needs of all families.
Another type of asset that must be considered is the retirement asset. Each of the different type of retirement assets, e.g. pensions and IRAs, must be considered individually because the methods of valuation will vary depending on the type of asset. Usually, defined benefit plans, or pensions, must be valued by an actuarial accountant to determine the present value of the asset. This is because the total amount paid out depends on a number of factors, including retirement age and longevity. On the other hand, some retirement assets are divisible based on their face value.
If you are considering divorce or dissolution of a domestic partnership, and have any questions or concerns about how your property should be divided, you should contact an experienced Portland, Oregon divorce attorney as soon as possible.