During marriage, a lot of emphasis is placed on the marital home. If there are children in the marriage, this emphasis becomes even more pronounced. The home is not only a considerable marital asset, but is also where the marriage developed and has emotional considerations for both parties as well as the children. During divorce proceedings, there is often intense disagreement on who gets to stay in the home and who must leave the marital home. Access to the marital home is one of the most contentious parts of a divorce and requires a thorough analysis of each party’s financial condition, surveying all assets, and contemplating future financial goals, as well as considering the wellbeing of the children residing in the home.
During discovery, the marital home will be examined. Examination will include:
- Name on the deed of the house. Usually the marital home includes the name of both parties on the deed. However, in some cases the deed includes only one member of the marriage.
- The value of the home.
- The child or children’s emotional attachment to the home (school district, friends etc.)
- Amicability of selling the home and distributing the value.
During the temporary divorce proceedings, an Automatic Temporary Restraining Order is automatically enforced. This order makes it illegal for either party to sell or make serious modifications to the marital home.
During the divorce proceedings, one party may request the home during the property division portion of your divorce. The member of the marriage who is considering living in the martial home should consider the impact this decision may have on the temporary and finalized spousal support payments. During the divorce proceedings, the parties may also agree to sell the marital home, buy one another out or split the debt on the marital home.
If there are additional properties or homes, these will also be considered and distributed during divorce proceedings. It is common for one party to receive the marital home while the other party received the additional properties or homes.
If retirement accounts were accumulated and contributed to during the marriage, California community property law dictates that the value in the retirement accounts should be divided between spouses equally.
Retirement benefits include any compensation earned during the marriage regardless of vesting or maturity. Because the value and appropriation of these assets are often difficult to determine, during the divorce proceedings, parties may wish to create a distribution agreement that is more creative in nature.
Retirement assets do not always have a dollar for dollar value immediately available. When initiating an agreement on the distribution of retirement accounts, a current value must first be determined by an expert such as an actuary. Plans can be divided through the use of a QDRO, “Qualified Domestic Relations Order.” This procedure is reserved for plans that qualify under ERISA. Generally, there is a 50/50 split of property and assets, however, the parties will work together with their attorneys to create an amicable and beneficial distribution.
Contact the Hills Law Group today to discuss the division of retirement accounts.
Debts & Credits
Epstein Credits and right to reimbursement often become contentious issues during divorce proceedings. Parties involved in a divorce often feel able to separate and individualize debts and credits accumulated during and after the marriage. These terms refer to post-separation payment to benefit the home, the children and/or the other spouse.
Debts accumulated during the marriage may include mortgages, credit cards, and car payments. Debts incurred during the stages and finalization of the divorce can include debts incurred by separated assets such as the home or children. For example, if one party is living in the former marital home and incurs the cost of a fire insurance bill, this would be considered a post-marital debt. If the payment is not for the exclusive benefit of the party paying the bill, and not made in lieu of support, then the party incurring the debt can request reimbursement from the other party.
During divorce proceedings, the parties will work to create an agreement on the debts and credits incurred during the marriage and future debts and credit incurred after the finalization of the divorce.
Contact the Hills Law Group today and get help on the division of your property and assets.