Community, Common Law and Separate Property
Before you decide what is your share of the marriage assets, you have to know who owns what. Two types of property ownership exist across the US: common law ownership, which constitutes the majority of states, and community property ownership, which 10 states use. Generally, in a common law state, if only one spouse buys something, it's his alone unless he and his spouse agree to own it jointly. In community property states, if a spouse buys something during the marriage, it belongs to both spouses. Separate property is property owned by either spouse before the marriage, or property that was gifted or inherited by only one spouse. Separate property belongs to the spouse who owned or received it, unless he agrees otherwise with his spouse.
List Your Property
If you list the assets and debts you and your spouse own, then separate out each spouse's separate property and debt, you're left with marital property and debt, or what you and your spouse own together that must be divided between you in the property settlement portion of the divorce. Once you assign a fair value to each asset you have a clearer picture of what's on the negotiating table.
Your list gives you a clearer picture of what you own with your spouse but the picture may not be complete. Because some assets may be overlooked, it's worth the effort to inventory the contents of any safety deposit boxes, research old bank and investment accounts, obtain copies of retirement and insurance plans and delve into business records if either you or your spouse owns an interest. A certified divorce financial analyst can help you identify all the assets in your marriage so that no assets slip through the cracks.
Attorneys and forensic accountants have ways to find assets your spouse may be hiding on purpose. Information on federal and state tax returns, property tax records, business records, loan applications, accountant records, and government and public records must be consistent within themselves and with each other. Discrepancies are a red flag that more assets are out there -- a portion of which you may be entitled to.
Negotiating for Your Rightful Share
Assets and debt are supposed to be divided equally by value during divorce in community property states, and equitably -- which does not necessarily equate to a 50/50 division -- in the common law states, which have equitable distribution laws. If you want a particular asset but it has a significant financial value such as the house, offer your spouse several other assets that add up to the house's value. It may work to your advantage if your spouse has attempted to hide assets, because the court will not look favorably upon that behavior and may compensate by giving you more of the specific assets you want.
Enforcing the Property Settlement Agreement
Enforcement of a settlement order requires filing a motion for enforcement with the court. If after the divorce is final, your spouse fails to make spousal or child support payments, does not maintain a required insurance policy or reneges on tuition payments, a motion to enforce is filed and a hearing is held. At the hearing, the court needs to see a copy of the settlement agreement and hear from you what your spouse has failed to do. The court can then decide how best to enforce the agreement. Wage garnishment and criminal prosecution are an option, and where a spouse has failed to transfer property as originally ordered, the court may hold your spouse in contempt of court, which can carry jail time.