property division

Question 1

property division generally

Answer 1

equitable distribution state
court determines legal title and ownership of the parties real and personal prop, and distribute marital property equally

Question 2

what are the two steps to dividing property at divorce

Answer 2

step 1: categorizing assets:
-spouse 1 separate prop
spouse 2 separate prop
marital assets
step 2: distribute the assets
-court can only distribute marital property

Question 3

separate property

Answer 3

all property acquire prior to the date of marriage
any gift or inheritance received by one spouse in their sole name during the marriage
property acquired after separation
pain and suffering recoveries: if either spouse hurt and gets a recovery for pain and suffering that will be seperate
passive appreciation from separate property: increase in value due solely to the passage of time and market forces
ANY APPRECIATION DURING MARRIAGE DUE OT EFFORT OF EITEHR SPOUSE IS TREATED AS MARITAL

Question 4

Marital property

Answer 4

anything that comes into the marital unit during the marriage
-this includes income from work during the marriage. doesnt matter who earned the money to buy an asset or whose name is on the title to that asset. also intangible assets that come into the marriage after the date of the marriage and before separation

Question 5

commingling and tracing

Answer 5

when one type of property is contributed to another, the contributed property retains its original classification as long as it is traceable

separate property is commingled with martial property and loses its separate identify ex: checking account that was separate before and then both spouses income are put in it and all family expenses during the marriage

Question 6

professional goodwill and licenses

Answer 6

professioanl goodwill is property for purposes of equitable distribution
degree or license to practice a profession is not

Question 7

valuation of marital property

Answer 7

the court determines the value of property as of the date of the eharing

Question 8

factors considered equitable distribution of marital property

Answer 8

-age/health: consider whether age/health will limit employment opportunities making it harder for that spouse to earn money and accumulate additional property

duration of marriage: if shorter=equally if longer one spouse may have become economically dependent on the other
marital fault: can be considered even if divorce is on no fault basis

liquid or non liquid character assets: it may make sense to give an economically dependent spouse liquidated assets

income: directly related to the ability to earn money and accumulate property post divorce

custody of children: custody, especially of young children, also affects ones ability to earn wealth. it may be rational to give the custodial parent a larger share of the liquid assets so they can pay for day to day expenses. also give family home potentialy.

tax consequences

Question 9

implementation of award

Answer 9

in kind: specific assets to each spouse

cash award: value the assets and order one party to make a cash payment to the other (can be lump sum or installment)

Question 10

marital debts

Answer 10

treated like assets with negative value. put in marital property and split.

Question 11

dividing pensions

Answer 11

portion of pension earned during marriage is a marital property subject to distribution
ERISA–if see a pension note that the court will have to comply with the special rule imposed by federal law

Question 12

is alimony considered during substantive property division?

Answer 12

no