Arguments Over the Toaster Oven

"Never marry for money. Ye'll borrow it cheaper." -Scottish Proverb

FOR SOME PEOPLE, custody of their children is the most hotly contested issue in a divorce. For others, the hot topics are who gets the Ming Dynasty vase given as a wedding present or the Elvis Presley CDs that belonged to them before the marriage.

Assets Worth the Fight

At some point during the divorce, you will need to divide the following property: marital property acquired by both spouses during the marriage, gifts and inheritances received by both spouses during the marriage, and separate property which each spouse brought into the marriage or purchased with separate assets during the marriage. A multitude of potential assets and associated liabilities should be addressed in the settlement agreement.

These assets may include the following:

• Furniture and furnishings of the residence
• Bank accounts
• Stocks
• Bonds
• Checking accounts
• Savings accounts
• Life insurance
• Retirement plans
• Individual retirement accounts
• 401K plans
• Jewelry
• Automobiles
• Antiques
• Family heirlooms
• Sporting equipment
• Artworks
• China, silver, crystal
• Boats and trailers
• Personal collections such as coins and stamps
• Gun collections
• Business equipment
• Tools
• Yard equipment

In an ideal situation, you will be able to agree on most, if not all, of the property division. If you reach that point, you will need to address the specific division of the property and the responsibility of each party for any debts.

Factors The Court Considers

If the parties cannot agree on a division of property, the court then must undertake the division itself. The judge can consider a wide variety of factors in the division of the property, including the following:

• Which party owns the property
• If the property was owned prior to the marriage
• If the property was purchased during the marriage
• Any contributions to the property by either party, including money and labor
• Length of the marriage
• The parties' respective ages, health, occupations, employability and ability to produce income
• The degree to which a spouse has diminished his or her future earning capacity because of years spend caring for the children
• The opportunity for each spouse to acquire additional capital, assets or income in the future
• What alimony payments will be made
• What each party should equitably receive in the division
• The fault of the parties

You Should Decide

It is in your best interest to work out an amicable division of the personal property, instead of leaving these decisions to the judge. For one thing, you know what property you want. Secondly, you have more time to go into painstaking detail on a property division. A judge, on the other hand, doesn't really want to divide personal property. He will deal with the property division much more quickly, to expedite resolution of the entire case. He doesn't have the time to ruminate over the fact that you are fond of that armoire in the bedroom, or that only you watched the big-screen television.

"Unless there was no other way, I would not want a judge to decide property and custody issues," says one Alabama Circuit Court Judge. "Our knowledge of the history and facts of the case is simply too limited. For that reason, I have become a strong advocate of mediation, where the parties can take more time to expand upon a solution than the judge can in a trial setting."

The judge, in fact, will draw a big line somewhere down the list of property. He may split the property evenly, but he may not understand the worth of certain assets and could split the property very unevenly. If one party does not get a particular piece of property, it may be gone forever if the other spouse does not want to trade it for something else. You may have to go to trial over other significant issues, but try your best to work out the personal property issues with your spouse without help from the judge.

Don't get caught up in an ego war over personal property so intense that when all the dust settles, you have paid your lawyer thousands of dollars to successfully fight for only hundreds of dollars worth of property. I remember a horrible custody battle that we tried in court for several days and then nearly resolved, except the settlement talks failed over possession of a Lincoln Towncar. Keep in mind, the custody issue was resolved, but we could not settle the issues concerning this automobile. The parties' true priorities become abundantly clear when this type of situation happens. The car proved to be far more important to the parties than the children.