Attorney & Mediator
Attorney & Mediator

Gray Divorce – Division of Assets

Division of Assets. 

Generally, for a long term marriage, the marital assets will be divided 50/50.  Premarital property acquired prior to the marriage as well as inheritances will not be divided if they were not comingled.

Debt will in all likelihood be divided equally as well.

This can change if there was a prenuptial agreement that was signed prior to the marriage.

Since older established couples may have accumulated more wealth than their younger counterparts, it is important to accurately value the assets and to know the tax consequences that are lurking behind every asset.  Not all assets can be treated the same.  Some have built in capital gains.  Others do not.  This impacts the value to you.

Division of Real Estate

As with other financial assets, real estate has hidden tax consequences that can impact the value to you.  The family home is usually the first place that you will start.  While you may want to keep the family home as it represents security to you, it is important to realistically evaluate whether you can afford to keep it.  Can you afford the taxes, maintenance, and utilities?  What will you have to give up in order to keep this asset.

Does the home have a mortgage?  If it does, will you qualify on the basis of your assets and income to handle the mortgage outright?

Are there other properties that you jointly own?  Are they mortgaged or owned outright?  Should these be sold to generate cash, or are you going to split them up?  Again, as with the marital home, there are costs associated with maintaining real estate that should be realistically viewed.

For vacation properties, there will be built in capital gains to take into consideration.

Inheritances and Gifts

Generally speaking, inheritances and gifts received by one party can remain his or her own property outside of the division.  This is true only if the property was not comingled with other assets.  Did you keep these assets in your own name alone?  If it is gifted property, is it clear that it was a gift only to you and not to you and your spouse as a couple?

Personal Property

There will be many items of personal property to divide.  Some may be valuable or sentimental, others are not.  It is an emotional time, and it is difficult to have perspective on the division of these items.  While it may be worth fighting about an heirloom or work of art, you should carefully consider whether it is worth the costs and attorney fees to fight over the dishes.