By Donald A. Hayes, Esq. Attorney at Law
There are alternatives to having the court decide who gets what in a marriage dissolution. You can do it yourself and control the process without having the court do it for you. Here are just some of the methods that can be employed.
An “in kind division” is where each party takes one-half of fungible assets such as bank accounts, stock, IRA accounts, etc. Another method is where the parties agree to “trade off” certain assets for others. This method is usually done without regard to value whereby one party simply agrees to take certain items of property and the other agrees to take other items of property, a kind of horse trade.
The “piece of cake division” gets its name from the common situation where two kids have a piece of cake to be cut in half and to avoid the argument over who gets the bigger half, it is agreed that one will cut the cake and the other gets to choose which piece (s)he will get. In the divorce context, one party makes up two lists of property which (s)he believe are equal, and the other party chooses which list of items (s)he will take, i.e. furniture, furnishings, appliances, etc. In using this method it is important not to break up the sets of common items, i.e. dishes, dining room set, matching works of art. In fact, it may advisable to list furniture and furnishings room-by-room and have alternate choices of rooms.
Another common method is the “one values, the other chooses” method. Here one party places a value on each item of community property in dispute and the other party chooses those items (s)he will take at the stated value up to one-half the total. The parties may also agree that the party choosing may select any, all, or none of the items, with any items not chosen going at the stated value to the one that set the value on the items. An equalization payment may be required to be paid to one of the parties.
With the “you take it or I will take it” method one party places a value on an asset and the other party will either take it at that value or force the party placing the value to take it at that value. This forces the party valuing the asset to be fair and if (s)he is too high then the other party may force (s)he to take it at the high value.
When several martial assets are in dispute, a combination of these methods may be used for different assets.