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January 20, 2020 - Advice and Strategy > Legal
Tips For Dividing Marital Property During Divorce

The first items you should try to assess are: property you purchased in the marriage, property you gave away to your spouse after the marriage, and any property you acquired during the marriage, but did not give away. Any additional property you acquired during the divorce will be considered marital property. After you've completed the inventory, you can then determine whether there are any valid, legal or equitable reasons for dividing up the marital property. For example, if two of you bought the same restaurant on a lease but one of you purchased the restaurant as part of a joint venture, the lease would be considered marital property.

Who Can Sue You During Divorce for Marital Property?

In California, only spouses can bring a marital property lawsuit. The only exception is if one spouse has been physically or sexually abusive to the other spouse. Although the purpose of this exception is to allow victims to pursue lawsuits that would otherwise be barred by state law, it has the perverse effect of making it illegal to file a lawsuit against your spouse for personal injury when the injury came to you as a result of your spouse's assault, whether the assault was intentional or accidental. This is a very strange way to interpret California law. It is very possible to go to court and sue your spouse for injury you suffered as a result of abusive behavior. Your spouse may be able to sue you over the same incident, for example, by arguing that you were the primary witness. If you filed for divorce in Florida and received a court order awarding you both your spouse's assets and marital property, it may be possible to go back to court and fight to get your marital property back despite the order's language permitting the other spouse to receive his property in the event of an equitable distribution. It's not very likely that the court would award the wife your marital property, but it can happen. The situation may not be very different if the marital property was created or accumulated in your joint business or as a result of joint efforts on your part.

How Much Marital Property Can Be Divided During Divorce?

The most the court can award is one half of the value of marital property at the time of the marriage. Once the court begins dividing the marital property, it will divide it up between you and your spouse. Generally, the court will decide the dividing factors, but there can sometimes be special circumstances that make that determination impossible to make. For example, if you and your spouse have equal interests in property, the court may divide the property on an equitable basis. In other cases the court may require both of you to participate in the division of an asset, but the court will attempt to reach agreement on the appropriate division. The amount of the divided property is called the "modification payment" (sometimes called the "split payment"). The total amount of your modification payment is one-half of the amount of all the marital property that was transferred during the marriage (even if the assets were only an asset). For example, if you received $30,000 in cash from your spouse and his or her assets total $15,000, the court will divide up the cash and divide up the remaining assets. The modification payment is based on a formula, but it isn't always easy to figure out exactly how it is calculated. Sometimes there are special criteria for determining the amount of compensation (or modification payment) to your spouse.


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