Divorce does more than sever the legal relationship we call marriage; it also divides the marital property you and your spouse have accumulated. The assets with which you leave your marriage provide you with the financial foundation for building your new life, so division of marital property is an issue that deserves focused attention.
Ideally, you and your spouse will be able to reach agreement about how to divide your assets and debt in a way that is fair and satisfies you both. Reaching your own agreement not only allows you to customize your division of property to your needs, doing so eliminates the need for costly legal battles over the marital estate. While most couples are able to reach agreement either on their own or with the help of their attorneys, in some cases, it is necessary to litigate the division of property in order to arrive at a fair outcome.
Depending on where the divorce is taking place, there are different rules about how assets and debt are divided. In the District of Columbia, the marital estate is allocated by “equitable distribution.” Equitable distribution means that a District of Columbia court will order a division of property that is fair under all the circumstances. Note that the term “equitable” does not necessarily mean exactly equal.
Before a court can divide a divorcing couple’s property, it must first determine which property is subject to division. Property that is considered “marital” can be divided in a divorce; property that is determined to be “separate” is not.
Separate property is property owned by either spouse prior to the marriage, as well as any income from, or appreciation on, that property. Property inherited by one spouse alone during the marriage is also considered separate. There is one important caveat: separate property that is commingled with marital property becomes marital property. For example, funds in a bank account owned by one spouse before marriage that are transferred into the couple’s joint account typically would become marital. Commingling issues in District of Columbia law can be quite complex and should be discussed with knowledgeable legal counsel.
Marital property is any property acquired by either spouse during the marriage, including income, real estate, investments, business interests and assets, vehicles, boats, art, jewelry, furniture, and other personal property. It is also possible for an asset to be partly separate and partly marital, such as a retirement account opened before marriage, and contributed to both before (or after) and during the marriage. It is not always obvious whether an asset is marital or separate, and the classification of an asset as marital or separate can have a huge impact on the size of the marital estate. If there is any ambiguity about the nature of an asset, an experienced divorce attorney will be instrumental in advancing your position in court and protecting your property interests.
Once the court has identified which assets are classified as marital and separate, the next step is to determine the value of the assets in the estate. The value of some assets, like bank accounts, will be obvious; the value of others, such as a small business, may be much more difficult to determine. Again, the assistance of a knowledgeable divorce attorney is essential; attorneys who routinely deal with complex and high-asset divorces have access to respected professionals, such as forensic accountants, who will be able to serve as expert witnesses regarding the value of certain property.
Following the identification and valuation of marital assets, the final step is for the court to determine what distribution would be equitable. This critical determination is made after consideration of the following factors set out in District of Columbia law:
These considerations are fact-based, but clearly cannot simply be plugged into a formula to yield an equitable property distribution. It is the work of the divorce attorney to weave these facts into a compelling narrative that encourages, if not compels, the court to order a favorable division.
An experienced, effective attorney is frequently able to help you negotiate a more favorable division of property than you could do on your own, and to keep negotiations from devolving into unproductive fighting. When litigation over property division is necessary, a knowledgeable attorney can advance your interests at each stage of the process: identification of marital property, valuation of marital property, and determining what distribution would be truly equitable.
As such, it makes sense to view the fees of an experienced divorce attorney as an investment that helps to establish a solid financial foundation for your future. Bear in mind that an attorney who is an effective negotiator can also help you to reach settlement, avoiding the expense of a trial. An attorney who is also an accomplished litigator will encourage you to settle when doing so is in your best interests, but also is capable of defending your financial interests at trial if a reasonable settlement cannot be reached.
At Strickler, Platnick & Hatfield, we have decades of experience successfully resolving the most challenging and complex District of Columbia marital property matters, including those involving hidden assets, business interests, assets in other countries, extensive and complex assets, and more. We approach these matters with tactical precision and creative insight to protect your interests. We advise you with your specific goals and overall financial objectives in mind.
We invite you to contact Strickler, Platnick & Hatfield to schedule a consultation to discuss your individual situation and learn how we can help you with your marital property issues.