The “Law”.
The law says a court may “assign to either the husband or wife all or any part of the estate of the other.” This means that a divorce court can allocate between the spouses all assets, property and debts in the name of the spouses jointly or either of them individually. For example, a court may order one spouse to transfer title of the family home to the other spouse. The court’s allocation must be fair and equitable.
For purposes of divorce, property and assets are defined broadly. Bank accounts, cars, furniture, IRAs, stock options, family partnerships, jewelry, timeshares, vested and unvested pensions – these are all property interests which are subject to court order in a divorce.
There is no set formula or mandatory percentage share of asset division and debt allocation. For example, there is no “50%-50%” rule and the spouse earning the most income during the marriage is not automatically entitled to a greater share of the assets. We don’t recognize “community property” in Connecticut and just because one spouse owned property before the marriage doesn’t mean he or she will keep it after the divorce.
For couples choosing an adversarial divorce, the focus is on the so called statutory criteria – trying to guess what a judge would determine is fair and equitable after hearing evidence at trial and considering the following items:
- Length of marriage
- Cause for the divorce (sometimes called “fault”)
- Age, health, station, occupation, amount and sources of income, earning capacity, vocational skills, education, employability, estate, and needs of each of the spouses
- Liabilities of each spouse
- Opportunity for each spouse for future acquisition of capital assets and income
- Contribution of each spouse in the acquisition, preservation, or appreciation in value of their respective estates.
Our law gives the trial judge tremendous discretion in how he or she weighs each of the factors and fashions the financial orders. Two judges hearing the same evidence in a trial might enter vastly different orders – just like two lawyers might legitimately analyze a case differently from each other. Therefore, it is impossible for even the most experienced lawyer to predict the outcome of an asset or debt distribution at trial with certainty.
Adversarial divorce can result in a property division that neither spouse wants – such as an order to sell the Disney time share when both spouses want the children to be able to enjoy future Disney vacations or that one spouse transfer to the other their 1/3 interest in the business he owns his their father and brother.
A court doesn’t have the authority to make property division orders until the time of judgment, meaning when the divorce is final. For example, if one spouse wants to sell the family home while the divorce case is pending but the other does not, the court can’t order the home sold or even listed for sale. This limitation on the court’s authority is a source of frustration for many couples litigating their divorce.
Non-Adversarial options.
In mediation and collaborative cases the law and what a court might order at trial matters. But the focus of the property division negotiation is on the goals of both spouses and what makes financial sense as each moves forward with their lives after the divorce.
Mediation and collaborative divorce clients are not limited to considering only the statutory criteria. Instead, negotiations can take into account whatever the divorcing couple thinks is important – family traditions, income tax effects, estate planning, extended or adult family members, church or charitable interests, business succession.
And especially in a collaborative divorce, the divorcing couple can take advantage of the expertise of a neutral financial professional jointly retained by them to maximize the benefit of their property division plan.
Consider.
Dividing the assets and allocating the debts a couple has accumulated before and during their marriage is one of the most important components of almost any divorce plan.
We help our clients create property divisions that meet their needs, short and long term, and are consistent with the law.