Decisions About
Property

One of the questions that always comes up in mediation is, “Who gets what?” You’ll be happy to know that in mediation, as long as you agree, you can make any property settlement you want.

Remember that property includes many things: real property (a house, a condominium, a car), personal property (jewelry, stocks, pensions), even the increase in value of something you own. The terms describing the distribution of the different types of property are broken into the following categories: separate property, marital property, transmuted property, community property, and equitable distribution.

For many couples who own their own home, the home is their largest asset. There are several factors to consider in negotiating decisions related to your home: whether your home is marital property, how to value it, which of you will keep the home, or how you will divide the equity if it is sold. If you choose not to sell your home at the time of the divorce, see the questions that discuss how to determine future value, and the concept of trading off your share of the equity in the house for other assets.

Just as with your home, when you negotiate your agreement, you may need to assess a family business in order to share its value as a marital asset or receive future income. Businesses are organized in different ways-——sole proprietors, partnerships, and different types of corporations–and each form of ownership has different operating rules and a different financial structure.

If you or your spouse has a small business, you may be able to value the business yourself, based on a review of the relevant documents. If you are evaluating a large business with significant income and assets, an expert may be necessary to determine the actual value. Even with a small business, mediators find that if one spouse distrusts the other, a valuation by a neutral expert whom the couple consults together can be useful.