What is "Marital Property"? Generally, it's anything that you acquired during the marriage. There are important exceptions, mostly items which are Non-Marital Property. Those things include anything you owned before the marriage, anything inherited by you before or during the marriage and anything which was a gift specifically to you for your exclusive enjoyment (i.e, diamond earrings, fur coat, etc.) Non-Marital Property and how to protect it is discussed in greater detail here.
Returning our attention to Marital Property, this is usually going to be any houses or other real estate, cars, vehicles, stocks, cash, retirement funds, pensions, business interests, personal property and other items of value acquired or accumulated during the marriage.
In the Non-Marital Property section, we discuss how assets that have mixed natures (being both marital AND non-marital) are "traced" to separate their values for division or assignment.
Kentucky law requires the court to divide all marital property in just proportions. In most cases, this will mean equally. The spouse that stayed home and cared for the house and children is usually deemed to have contributed just as much to the marriage and marital assets as the spouse whose name appears on the weekly paycheck.
In order for the court to make an equitable division of your marital property, it must first know what constitutes the marital property. In all Kentucky divorce cases, both parties are required to file Verified Disclosure Statements. They are quite detailed and sometimes overwhelming in appearance. But your involvement in identifying all assets (both marital and non-marital) is essential. The subject areas included in the Verified Disclosure Statement form include:
Fair Market Values
Used personal property has far less value than we like to think. The real "value" is what it could be sold for at an auction or in a yard sale -- not the replacement cost or its purchase price. In other words, what a willing seller would accept from a willing buyer.
Dividing Marital Property by Agreement
You and your spouse will always do well to divide your marital possessions and decide ultimate ownership of personal property, especially items like used furniture, appliances, TVs and stereos. Such property must be appraised if there is no agreement, and this can be expensive.
Most people are dissatisfied with the values assigned by court-appointed appraisers. Unless we're talking about real estate or truly valuable antiques, collectibles, jewelry, etc., it is usually to your advantage to sit down with your spouse and agree who gets what.
We often recommend using an "alternate selection" process. The parties flip a coin to see who goes first. Party #1 takes the one item he/she most wants. Party #2 then chooses the two items he/she most wants. Then, the parties take turns selecting items until all the personal property is divided or only items they cannot agree upon remain.
Before you "declare war" over items of marital property, you have to consider if you are willing to potentially spend more than the items are worth in attorney fees, appraisal costs, etc. to get them.
But What If We Can't Agree?
It happens. Sometimes the two parties are in such high-conflict modes that they cannot agree on the time of day. We see it all too often. There are several alternatives for resolving these disputes:
Mediation -- This is usually the first choice. 85% of all disputed divorce cases are settled in mediation. We've devoted a whole page on this website to the mediation process but, in a nutshell, the parties and their attorneys choose an experienced Family Law attorney or retired Judge to help them reach an agreement on disputed issues.
Collaboration -- This is a fairly new approach to Family Law and we explain it more fully elsewhere in this website. Attorneys practicing Collaborative Law have to complete unique legal training. (See the "Collaborative Law" section for further explanation.) The parties and their attorneys agree in writing that they are NOT going to go to the Court with motions, hearings and trials. They make a commitment to work out a solution amongst themselves. If either of the parties decides to break the agreement by filing motions with the Court, then both parties have to discharge their lawyers and start all over again (usually at significant expense) with new attorneys. This is usually enough incentive for the parties to stick to the collaborative law process.
Arbitration -- Arbitration is not used every day in divorce cases but it is appropriate in certain instances. See the "Arbitration" section here for more details but, in essense, the parties and their counsel agree on an Arbitrator who will hear the parties' positions and he/she will make a recommendation to the Court as to how to resolve the issue. Generally, the Court will accept the Arbitrator's recommendation and make it an official order of the Court.
Litigation -- Filing motions, holding hearings, bringing in witnesses and holding a full-day or multi-day trial are always going to be your most labor-intensive and expensive option. Further, you give up most input you might have to come up with a creative solution that is in the best interests of everyone involved. The litigation process is more fully explained elsewhere in this website.
Every Family Law situation is unique. But there are many
techniques we can utilize to protect your interests in marital
assets. Please talk to us about these concerns during your