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The first thing both of you must bear in mind is that neither of you will be as well off after the divorce as you would have been if you had stayed married. In most cases, both of you have worked to gain the property you have accumulated, and it is only understandable that neither of you want to walk away empty handed. Even if you are the sole wage earner, the court's view your spouse's housekeeping and other contributions to your marriage to be ample entitlement to part of the marital pie. So, you can both cut your losses if you try to be fair to each other. Don't bother to berate the other guy's contribution. If she was a lousy cook, or he didn't paint the shutters as often as he should have, the judge probably won't care. Even if your spouse didn't do his/her fair share, you will have a hard time producing the evidence you will need to convince a judge that your spouse was a piker. This is because it is your word against his/hers, and it is rare that people will admit to their own laziness.

If you have only been married for a short time, division of property may be simple. Each party would take what they brought into the marriage, and anything you acquired after the wedding would be equally shared. Unfortunately, debt accumulation often outstrips property acquisition, and then, the equity of the situation is more difficult to untangle. The following information does not exhaust the issue of property an debts, but it should give you a handle on what to consider when negotiating with your spouse.

1. Real Estate: There are several issues regarding real estate. The biggest question is whether one of you should keep it, or whether it should be sold. This decision could depend on many factors, and you will have to decide in the end, what is most practical for you. If one of you keeps the house, you may have to buy the other spouse out of his/her interest. If neither of you can afford to do that, selling it may be your best option.

   If one of you brought the house into the marriage, you may think you have the right to keep it, without giving the other spouse any money. This is true, if the home was paid for when you married, and no significant improvements were made while you lived together. Even this situation poses problems when the home owning spouse deeds half of his/her interest to the non-owning spouse.

   Still, in this situation, the original owner should walk away with the house, since the other spouse didn't do anything but get married, which did not contribute to its value. However, if the house increased significantly in value since you took the vows, the non-owning spouse is entitled to half of the increased value of the home, even if the increased value is a result of market whims, rather then sweat or financial contribution. . An appraiser can help you figure out what that half might be.

   If the house has a mortgage against it, and one of you made a hefty down payment, my formula is this. Get the house appraised. Subtract the outstanding mortgage from the appraised value. Subtract the down payment from the appraised value. The spouse who made the payment should receive it. Finally, if there is anything left, it should be equally shared.

   If the house was acquired less then 5 years ago, chances are good that it is not worth much more then you owe on it. If you made improvements, or there has been a boom in real estate values since your wedding, you could have some equity. But, again, you should get the house appraised before you enter into a long winded legal battle over its disposition. There is no good reason to fight over a pig in a poke.

   If there is no equity in the house, the spouse who can most afford to pay for it should probably keep it. If the monthly payments are low, it might be fair for the less solvent spouse to keep the house. His/her opportunities to get another house may be limited. In any event, whoever ends up with the house should be able to get his/her financing in his/her own name. Otherwise, your credit ratings will be dependent on the other person's performance long after the divorce decree is entered. Many times, good credit ratings have been ruined by ex-spouse's failure or inability to make mortgage payments. In addition, a new mortgage company will be hesitant to give a mortgage to a person who is already liable on a previous loan. This is true whether or not the ex-spouse is current on his/her payments.

   Finally, if you decide to sell the house, and split the proceeds of sale, you should also plan to split the deficiencies. In addition to any outstanding mortgage, there are other expenses which will come out of the sale proceeds. A second mortgage comes out right after the first. Any delinquent real estate taxes will be taken. Any judgments which appear on the title will be paid out of the sale proceeds as well, whether or not you cause them, or they were not cleared off your title when you bought the house.

   Thus, even a fair amount of equity can be eaten by unforeseen liens and assessments. If there is a deficiency, you should each pay a share proportional to your income.

2. Motor Vehicles: "Does he have to provide me with a car?" is a question I have heard a number of times over my years as a divorce lawyer. The answer is usually "no." However, if cars were accumulated during the marriage, chances are that you are entitled to at least one of them. Which one depends on a number of factors. Generally, you should keep the car you were driving when the separation occurred. But, you will have to pay for it. So, if the cars are financed in both of your names, I would suggest that the less solvent spouse keep the one that is closer to being paid off. Again, remember the credit you save may be your own. If the less solvent spouse wants to keep the newer or more debt ridden car, he/she should see if he/she can get it financed in his/her own name. If the car is not paid for, and it is repossessed, the more solvent spouse could be left holding the bag. This is true of any motor vehicles, including motorized bikes, wave runners, boats, or anything else that has an engine, and is financed.

   Unlike a house, cars rarely keep their value. Thus, trying to sell cars to facilitate division of the marital property is rarely a good idea, unless neither of you can afford to pay for the car. Even then, you may find you are unable to get enough from the sale to discharge the debt against the title, and may be hard put to convince the bank to sign off the lien.

3. Personal Property: Personal property gets sticky, because it is usually only worth a fraction of what you paid for it, and it is expensive to replace. Again, each party should take the articles they brought into the marriage. Gifts from relatives should be kept by the spouse who is related to the doser. If the article was bought with one person in mind, that person should keep it. If money is still owed on the property, the person who incurred the debt should generally keep and pay for it. If there are duplicates, you should each take one. Finally, you should make a list of the left overs, and take turns picking what you want. You will loose a lot of money if you end up selling your things, but if all else fails, that may be what you will have to do.

4. Money Accounts: Generally, money accumulated during the marriage should be equally shared. However, if you kept your finances separately during your marriage, it may be easy to decide who is entitled to what, and an agreement can be reached on that basis. Again, it does not matter whose name actually appears on the account or pass book. What matters is how and when the money was acquired. Again, whatever you brought into the marriage should stay with you. If the money is a result of inheritance, the spouse related to the deceased should receive the money. It is the money obtained during the marriage by the parties which should be shared.

   This includes savings accounts, checking accounts, stocks, bonds, certificates of deposit, IRA accounts and pension plans. If you have a lot of those things, you may need financial advise to help you sort through them. Once again, even a sole wage earner will have to share with a spouse whose contributions to the marriage were not financial.

5. Unsecured Debts: Unsecured debts are the kind that do not require collateral. If you buy a car or a house, and don't pay for it, it can be taken back by the creditor. Medical bills personal loans and credit cards are not liens against property. Thus, the only recourse the creditor has is to sue when these debts are not paid.

   In general, the person who incurred the debt should pay it. If he had an early Christmas in the sports department, or she replaced her wardrobe on credit, this proposition is easy to follow. Unfortunately, debts are often more complicated then that. With medical bills, it is obvious who received the treatment, and thus it is easy to tell who should pay. Credit cards are different, because they are often used frequently, and it is rare when records are kept about what was purchased, and for whom. Sometimes, it is a good idea to get a copy of the original itemized bills from the credit card company to help you sort through it. Generally, you should pay for the items purchased for the benefit of you or your family members. You should share the items which benefited both of you, and you should share the purchases made for any children of your marriage. Again, income must be taken into account. If you make more, you may need to assume more of the debt, just to make sure it gets paid. But, you both should contribute to the payment, when the debt was incurred for mutual pleasure. Again, it doesn't matter whose name appears on the account, if both of you benefited from the goods and services which were purchased with the card.

6. Bankruptcy: In some cases, bankruptcy becomes necessary. Both of you will have better credit if you can avoid it. However, if you have more debt then either of you can pay on your own, you may have to seek relief from the bankruptcy court to get out of debt. Make an appointment with the Consumer Credit Counsel in your area before taking this drastic step. Both spouses will have to cooperate on the payments of joint debts even after the decree is entered. It doesn't matter what you and your spouse agree to pay, a bankruptcy filing by one of you can force the other to either pay all of the debts, or to seek the same relief. If the debt situation is impossible, you may be better off to file bankruptcy with your spouse before your divorce is filed. But, if a little financial cooperation can help you avoid it, you will have a much easier time getting credit in the future.

-- Lucille P. Uttermohlen, Attorney at law

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