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Obtaining your fair share of marital assets

If you and your spouse are preparing for divorce, you may be especially concerned about your post-divorce finances. Perhaps you have done a rough calculation of your total assets and wonder how you will ever survive on half of that.

However, your situation may not be as bad as you think. For one thing, you may not be including all the assets a court will consider during property division. Another factor to remember is that North Dakota is an equitable division state. This means you and your spouse will divide your assets fairly, and that does not always mean 50-50.

Factors the court will weigh

Only a few states are community property states. In these places, the court assesses all the assets and debts a couple acquires when they were married and divides it equally. Most other states, North Dakota included, take a closer look at the advantages and disadvantages of each spouse before splitting the assets. The courts in these states use a more complex process for dealing with your marital property, for example:

  • The court may consider certain items to be separate from marital property, such as gifts from a third party, inheritances, and in some cases, items to which only one spouse holds a title.
  • Items you owned before your marriage may remain your separate property.
  • The court will consider the length of your marriage, your ages and your health.
  • If you will have primary custody of the children, the court may award you additional assets, such as the family home.
  • The court will weigh the financial status of each of you as well as your current employment and potential earning power.
  • Your financial and non-monetary contributions throughout the marriage will impact your share of property division.
  • If one spouse used marital funds to finance an illicit affair, the court may weigh the asset division in favor of the other spouse.
  • Marital debts are also subject to equitable division.

As you can see, equitable property division can be quite complicated. You and your spouse may be able to negotiate a fair division of your assets outside of court, but the court will still determine if the agreement is fair to both parties. Because there are often hidden factors in assets, such as the maintenance and utilities of a house or the tax ramifications of an investment, it is wise to seek legal advice whether you negotiate your divorce or take the matter to court.

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Commandments of Family Law

  1. The only truth your children need to know is that you both love them unconditionally, and that this isn't their fault.
  2. Take the high road — everyone wins when you do what's best for your kids.
  3. Negotiate but don't capitulate — if you are being pushed toward something detrimental for your children, stand your ground.
  4. You can only control yourself and how you respond. Don't engage.
  5. Do set up rules and responsibilities. Kids feel better when routine is continued.
  6. You are still their parent — don't be afraid to be one.
  7. Disneyland is in California, not in your home. Don't set up unreasonable expectations.
  8. It is not their job to take care of you. Repeat that to them. Often.
  9. Yelling is for sports — not court. Good lawyers strongly advocate without being disrespectful to opposing parties.
  10. Fair is a place you go to get cheese curds. Aside from that, nothing in life is fair.

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