What is a "Fair" Division of Property in Divorce?

It's important to bear in mind that, in case of divorce, equitable or fair does not necessarily mean equal. A 50/50 split is generally the starting point in the discussion, but rarely do the two parties end up with an exact amount.

All is fair in love and war … but not in divorce.

When a couple decides to dissolve their marriage, most states require an “equitable” or “fair” division of marital property. But what constitutes “equitable” or “fair”?

It’s important to bear in mind that, in case of divorce, equitable or fair does not necessarily mean equal. A 50/50 split is generally the starting point in the discussion, but rarely do the two parties end up with an exact amount. In fact, one party may end up with a far greater share of the total combined assets.

Surprisingly, this is not because one spouse assumes greater “fault” for the marriage’s demise and therefore must make the other “whole” for a wrongdoing (although this can happen too). More often, it is because upon analyzing a couple’s Financial Affidavit, there are compelling reasons that an unequal division is more equitable over the long-term.

Considerations must be weighed

such as how the division may affect other parties involved, such as the children of the marriage, how the assets are likely to grow over time and the earning potential of one spouse over the other.

A common example is when one spouse, typically the wife, desires to keep ownership of the primary residence. Compare this asset to another marital asset such as a 401(k). Homes carry substantial maintenance costs and may have a much lower return on investment versus a well-diversified 401(k) account, which enjoys tax-deferred growth. A $500,000 home, therefore, may not hold the same value over the long-term as the $500,000 defined contribution plan. In this case, the spouse staying in the home would likely receive additional assets or support.

One spouse may have considerably less future earning potential than the other as a result of having been married (for example, one spouse may have stayed home to care for the children, or left his/her own job due to a relocation of the other spouse). This spouse may receive regular alimony as well as “rehabilitative maintenance,” which are funds paid for the specific purpose of

helping the financially disadvantaged spouse get the training necessary to support himself or herself.

But if the projected net worth of the other spouse is still much greater, spousal support alone may not be enough to justify the difference and a higher proportion of marital assets may be allocated to the lower earning spouse.

Sometimes, even separate property is brought into the decision if it means that one spouse would be at a considerable disadvantage after the marriage compared to the other.

For example, imagine a situation in which both spouses are left with approximately $200,000 after an analysis is done of total combined marital assets. But one spouse also has $4 million in separate property owned prior to the marriage. A decision might be made to also divide the $4 million, even if it is not technically a joint or marital asset.

Only recently did states begin to adjust their guidelines around what constitutes a fair division of property. In the past, the guiding principle over such issues was the term, “enough was enough.” This phrase meant that a spouse only deserved enough to maintain his or her current lifestyle

and not anything more.

A landmark case in 1998 involving Gary Wendt, former chief executive officer of GE Capital and his wife, Lorna, changed all that. In that case, Lorna Wendt argued that she was entitled to her husband’s future pension benefits and stock options because her role as a wife and homemaker contributed largely to his professional success and his potential future earnings. The result was that she was awarded $20 million, much more than her husband’s original offer of $8 million!

Certainly not everyone agreed with that decision. But it did raise the question of fairness and the need to evaluate a host of factors beyond the present market value of the assets involved.

Pensions and other defined benefit plans can be especially tricky to divide because their actual value can be complex if the participant is still working and contributing to the plan. If this is an asset in question, make sure you review all aspects of the plan, such as whether or not it pays out in a lump sum, whether or not the non-employee spouse can receive benefits before the employee spouse retires, etc.

And, before the divorce is finalized, carefully check the qualified domestic relations order, which is the order from the court to the retirement plan administrator that details how the plan’s benefits will be assigned to each party, to make sure that it was written correctly. Without such due diligence, one spouse may be left without an asset that he or she was counting on, or with one has considerably less value than originally assumed.

Once a divorce is final, it’s final. There may be provisions allowing for some future adjustments, with regard to such items such as alimony payments or other spousal support. But the division of marital property is generally permanent

so be sure that any issues about how to divide property “equitably” or “fairly” are addressed from the get-go.

Disclosure:

Please note that the discussion above is not intended as, and should not be interpreted as, legal or tax advice. Rather, it is intended to canvass how financial assets often are apportioned in a divorce. For legal or tax advice in a divorce situation, you should seek the advice of a qualified attorney or accountant.

Tom Orecchio is a principal and wealth manager with Modera Wealth Management, LLC (“Modera”). Nothing contained in this blog should be construed as personalized investment, financial planning, legal, tax, accounting or other advice, and there is no guarantee that the views and opinions expressed herein will come to pass. Investing involves gains and losses and may not be suitable for all investors. Information presented herein is subject to change without notice and should not be construed as a solicitation to buy or sell any security or engage in any particular investment strategy.

For more information about Modera, including our registration status, fees and services and/or a copy of our Form ADV Disclosure Brochure, please refer to the Investment Adviser Public Disclosure web site at

, visit our web site at

or contact us at (201) 768-4600. A full description of the firm’s business operations and service offerings is contained in our Disclosure Brochure which appears as Part 2A of Form ADV.

www.adviserinfo.sec.govwww.ModeraWealth.com