You gave up your career for the marriage and to raise the kids. Your spouse's career skyrocketed. Now, you're getting a divorce and fretting over finances. But, your attorney tells you there's light at the end of the tunnel. Your state has adopted the Uniform Dissolution of Marriage Act that entitles you to an equitable division of property.
Equitable Division of Property
The Uniform Dissolution of Marriage Act (UDMA) is a no-fault divorce statute that has eliminated the old grounds for divorce and outlines all the procedures for making custody, child support, maintenance or alimony and property division decisions. For the division of property, the trial court must determine the value of all marital property and make an equitable or fair division of marital property.
What Is Marital Property?
Under the UDMA, marital property generally consists of all property acquired during the marriage and the appreciated value of any separate property received during the marriage. So, there are two components to marital property:
- Property acquired during the marriage, other than separate property
- The appreciation in value of any separate property acquired by gift or inheritance including irrevocable trusts or vested interests in trusts and property brought into the marriage.
Steps for the Division of Property
The following steps are taken in dividing marital property under the UDMA:
- List all the marital assets
- Determine which is separate and marital property
- For each separate property acquired prior to the marriage, calculate its value at the time of marriage
- For each separate property acquired during the marriage, calculate its value on the date received
- For each property, calculate its value on the date of final hearing or final decree
- To calculate the marital property component of separate property, subtract the final hearing or decree date value from the date received or time of marriage value
- Add the value of the marital property component of separate property to the final hearing or decree date value of all other martial property
- Divide the marital property based on the calculated final value and upon the consideration of all relevant factors that the court deems just and fair
Certain property is excluded from the property division process:
- Property excluded by a valid prenuptial or antenuptial agreement
- Property that was depleted, reduced in value or used up during the marriage
- Property that was divided under a prior legal separation of the parties
Factors Used in Property Division Decisions
As used in the UDMA, an equitable division of property does not mean an equal division. The trial judge is given broad discretion and is required to determine and apply all factors that are fair and just. However, the judge cannot consider who was at fault, that is, who caused the breakup of the marriage. Illustrative factors include:
- The financial condition of the parties
- The ability of each spouse to earn money
- The age and status of the parties
- Entitlement to future benefits
- Individual contribution to increases in separate property
- Occupational experience in conjunction with education, training and business background
- Spouse's contributions to the other spouse's business advantage or career
- Spouse's fraudulent transfer of property or actions to deplete the marital estate
In making an equitable division of property, the court must look at the situation of the parties at the time the final hearing or decree and not at the time of the marriage. There have been instances where the trial court's application of the factors resulted in the awarding of the entire marital estate to one spouse. Of course, you should not expect this, but it is heartening to know that the UDMA's focus in on fairness and equity.