Family Law Part 3: What Happens to our Property?

Written by Jordan J. Mruz

A major part of a divorce is the distribution of property and debts. Both are equally important in terms of a court determining who will take what in a divorce. There is a two step process of dividing property. The court (or your attorneys if no trial is had) must first determine what is part of the marital estate and then it must determine what would be a fair distribution of property.

What is considered Marital Property?

Generally speaking, anything that is acquired after you were married, up until the point of a separation, is considered marital property. This would include tangible property, as well as debts. There are instances where property could be marital but be prior to the marriage (a home purchased in both of your names).

A common misconception for people is that they believe when they purchase something, like a car, with their own money for the down payment, are the only person on the loan, and even register the car in their own name, that this makes it their property, and not marital property. This is not the case. As long as that car was purchased after you were married and prior to separation, that car is part of the marital estate. This same logic applies to other property as well as debts. An example of this applying to a debt is if one of you went back to school and needed student loans to do so. Those may be in your name only, but they are part of the marital estate as well.

A very important item is retirement accounts. Retirement accounts are marital property. Portions of it may not be marital, if you had your retirement account for five years prior to your marriage.
What types of things are excluded?

There are a few things that are excluded from the marital estate. Again, things that you brought with you into the marriage are not marital property. Things you acquire as a result of a someone else’s will, is going to be excluded (unless it was left to both of you). This is not an exhaustive list, but these are ones most commonly dealt with in a divorce.

What does my attorney need?

As part of this action, at some point a property statement will need to be filed. This is simply a pleading that lists the marital property, marital debts, and significant items that should not be considered a martial asset or debt. The parties have a chance to list out items that they believe the court should know about, what the values are, who is in possession of it, and whether or not that party is seeking to retain possession of it.

Some attorneys may sit and fill this document out with you. I personally give a blank form to my clients and have them go home to fill out the document. This allows people to have time to either go through their home (if they are still in the home) or to think about what is in the home (if they moved out). I advise my clients to assign a value to the assets and debts. Some are easier than others (student loans for example are very exact). Some items are more difficult (that TV you bought two years ago for $800). The rule of thumb is to assign “garage sale” values to the items on the list. That TV is now worth more like $150-$200 on your property statement now. Other common items to value are cars, which can be determined by using a website such as Kelly Blue Book. Houses can be easy to determine value if they were purchased recently. They can be more difficult if you purchased it 25 years ago and an appraisal may be necessary.

What happens after both parties have completed a property statement?

If the parties agree on what is marital and what the values are, then a settlement may be accomplished quickly. The next step is then to determine who gets what and what, if any, equalization payment is needed. An equalization payment is payment that equalizes what each party is receiving. You add up the assets that you each are taking and subtract the debts each of you are taking and determine how far apart those numbers are. The amount it would take to make things equal is considered the equalization payment.

An example of the above is after adding up assets and subtracting debts, you have $50,000.00 net value and the other party has $100,000.00 in net value. It would take a payment of $25,000.00 to you, to make things equal.

If the parties don’t agree on what is marital or disagree on values of big items (houses or retirement), then property may need to be addressed at trial.

Does it have to be 50/50?

The laws in Nebraska do not require that the parties receive exactly 50% of the marital estate. The law requires an equitable distribution of property. Typically this will be close to 50/50, but could be 60/40 or a little more. You also can agree to take accept less than 50% in a settlement.

Conclusion

Property division can be a major sticking point between parties. It is important to remember that you in all likelihood you are not going to get everything you want, but neither will the other party. There is definitely a give and take that takes place. Fighting over the value of a platter you received for your wedding is probably not a worthwhile fight. Ultimately the $10.00 difference in value is not going to make or break your financial future. Choose your battles wisely, but always try to remain reasonable.

Family Law Part 2: The Temporary Hearing

Written by Jordan J. Mruz.

During your initial consultation with your attorney you may discuss whether or not it will be necessary to file a motion for temporary custody/parenting time and child support. If you are getting divorced you may also request temporary spousal support (or alimony). The post will address the preparation for this hearing as well as the hearing itself.

Do I even need to have a hearing?

It is not required that a temporary hearing be held. Whether or not it is appropriate to have this hearing in your case is dependent on a few things. For example, if both parties are working outside of the home in full-time jobs, your case may not be appropriate for spousal support (alimony and child support will be addressed in depth in a later blog post). If there is no disagreement about who should have custody of the children then it may not be completely necessary to have a hearing for temporary custody/parenting time. An example would be if one of the parties lives in another state and it would be disruptive to the child to move them at that particular point in time. Additionally you may file a motion for temporary custody and support and after discussing with the other party (or their attorney) you two reached an agreement on temporary matters. A stipulation could then be submitted to the court without having to go through with a hearing.

What do I need to bring to my attorney?

In the Districts where I currently practice (Central/South Central Nebraska), typically temporary hearings are done using affidavits only and there is no live testimony. This means that you will either need to bring affidavits to your attorney or you will need to meet with your attorney to write them together. An affidavit is essentially a sworn statement of facts, signed in front of a notary public. The affidavits should contain information that is relevant to what your hearing is addressing (e.g. custody and visitation). Your affidavit may state where the child has lived, with whom they have lived, who has been the primary care giver, how you meet their needs, and whether there any special circumstances surrounding the child that the court should be aware of (physical or mental disability). You may also need to tell the judge the reasons for why the other party should not have custody of the child such as their violent criminal history, drug/alcohol issues, abusive behaviors, etc. It is also helpful to provide the judge with what you think an appropriate visitation plan would be. These are just a few the things that your affidavit may address.

Your attorney should also discuss with you about whether any additional affidavits are necessary and they could be from a number of people. Maybe you have a close family member or family friend that has been witness to your great parenting skills and how much you do for the child. Maybe a coworker of the other party witnessed them get into a physical altercation and the child was around to witness it. People like this can be helpful to your temporary hearing, but be sure to avoid providing extremely duplicative information. Typically the judge does not want to read 10 affidavits from your parents, siblings, aunts/uncles, and cousins that all state how wonderful of a parent you are. Once is generally enough, and usually more than two of these are not really helpful.

If child support is being addressed at your temporary hearing, your attorney will typically present the judge a proposed child support calculation. This is what you believe the other party or yourself should pay for child support. You should bring your attorney pay stubs (at least a month’s worth of pay stubs, if not more) or if appropriate, your recent tax returns. The other party’s income information will be necessary to create an accurate calculation, but you may not have this information in your possession. Your attorney should be able to work with the opposing attorney to obtain this information.

What happens at the hearing?

As stated above, in the Districts where I practice, the hearings take place using only affidavits. Depending on the judge, the hearing itself may take place in the Judge’s chambers (not in the court room) with only the attorneys present. In other counties, the hearing will take place in open court without the clients present. In some counties the hearing will take place in open court with the clients present. Your attorney will advise whether or not you need to be present.

District rules will provide how soon before the hearing the affidavits needed to be exchanged and when responsive affidavits must be filed (rebutting what the other party said in their affidavit). At the hearing these affidavits and other exhibits (such as a child support calculation) will be offered and the parties will have a chance to object to the affidavits and exhibits. After the judge accepts the affidavits into evidence the attorneys will each have a chance to make an argument. The judge may make a decision at that time or they may take the matter “under advisement” so they have a chance to review the affidavits and issue a written order. That order may be available the next day or it may take a few weeks. Remember to be patient.

Please remember that this information is relevant only to Nebraska law and even within the state, there are specific rules for each District that your attorney should be aware of. This is meant to provide general information on what to expect with a temporary hearing. As always for more precise information, seek out assistance of a local attorney in your area.

Family Law Part 1: The Initial Consultation

Written by Jordan J. Mruz.

My name is Jordan Mruz and I am currently in my third year of practice at Fye Law Office. My practice does not have a focus per se, but family law cases are a large portion my work up to this point and I hope it will be for years to come. This will be first installment of an ongoing series where I will discuss the various aspects of different family law cases.  Look for future posts that will include discussions about what is required of you by statute, what a final trail may look like, and anything in between.

Are you married and considering getting a divorce? Are you considering leaving your significant other with whom you have children? If your answer is yes to either of these questions, you may be considering speaking with an attorney. This post will hopefully provide you with some guidance on what to be prepared for when you go to meet with an attorney.

One of the first things someone asks me over the phone is usually, “Do I need to bring anything?” The correct answer is (in true legal form):  maybe.  If you have a previous court order (and you are seeking to modify this custody order), then this is a great piece of information to bring to your consultation. If you cannot find your copy, your attorney should usually be able to look up the case. You may have text messages or emails from the other party showing a threat against your safety or claiming they will never let you see your child. You may have school records that show your child being absent from school for extended periods of time when they are staying with the other party. These are the kinds of things that can be helpful to prove your case. There is not always physical documentation of the evidence you need and I meet with many people in this position.

Many people come into my office and simply do not know where to start. I encourage these people to start with simple things such as: who the other party is, whether your are married, where you were married, when you were married, names and ages of children. These questions usually allow the person to open up and get to the more intimate details of why they need assistance. Tell the attorney your story and they will guide you through how that story plays out with the legal system. They will explain to you the basic process of a divorce/custody action, what will be required of you by the court, as well what the potential outcomes are for your case.

No two cases are exactly the same, so your attorney may explain how based on the information you provided, what direction they believe your case will take. I believe it is the best practice to tell the people I meet with what they can realistically expect for an outcome. I do not believe in telling people simply what I think they want to hear (that they will absolutely get X, Y, Z, etc.). I believe these types of open and honest opinions about the case early on can help the case reach an ultimate resolution with greater ease.