Fair Asset Division? Guidance for an Amicable Divorce
If you and your spouse are considering a divorce, you’ve likely already thought about one of the biggest sources of marital conflict: money. The division of assets between divorcing couples can be contentious, and you might be afraid that the end result won’t be fair.
These are legitimate and normal concerns. However, it’s important to know how different divorce processes approach the division of assets and compare that with what you envision as fair. Are their results the same? And if not, is there a better path forward?
How lawyers and judges approach asset division
A lawyer-led process is what most people picture when they imagine divorce. In this scenario, each spouse hires their own lawyer who solely advocates for their own needs and requests. The lawyer’s job isn’t to advocate for what is in the couple’s mutual interest, it’s to be wholly partial. To do otherwise could put them at risk of being sued in the future. If the lawyers can reach an agreement, the divorce is considered uncontested, and no court dates need to be scheduled. However, this approach is often contentious creating costly multi-year divorces.
When lawyers cannot arrive at a mutually agreed-upon settlement, both parties must show up in court before a judge. In most states, including the state of New York, judges are required to adhere to an equitable distribution rule. This requires them to take a host of factors into consideration and then divide the assets in what they deem to be an equitable manner.
This does not mean they simply cut the assets in half. However, the way they choose to divide the assets may differ greatly from what either party wants. When a contested divorce reaches this stage, all decision-making is removed from the hands of the married couple. Their lawyers present their case, but ultimately, the judge makes the final call on what’s “fair” - even if no one is satisfied with the outcome.
It’s impossible to know what a judge will do, but more often than not, one or both parties feel like they lost. Interestingly, judges often still demand that the couple figure it out.
How divorce mediators approach asset division
If that approach sounds less than ideal, there is another way: mediation. In this approach, the divorcing couple meets with a professional mediator who remains multi-partial throughout the course of the divorce. Rather than push for one side or the other, the mediator facilitates conversation between the divorcing couple to help them arrive at their own conclusions.
Mediation leaves the ultimate decision-making about asset division in the hands of the asset owners: the divorcing couple. After all, you’ve made all of your own financial decisions in your adult life so far; why give this life-altering decision away to someone else if you don’t have to?
To be clear, mediation can co-exist with one or more lawyers throughout the process if desired. In addition, many couples bring their mediated agreement to a legal professional together for a final look before filing for divorce officially.
Take the next step
If you’re worried that the division of financial assets with your spouse won’t be fair in a court setting, mediation could be the path for you. Even if you and your spouse have a lot of conflict, mediators are professionally equipped to guide your discussions without taking sides or influencing your decisions.
That being said, certain scenarios that involve domestic abuse, substance abuse, or failure to disclose financial and personal information may not be suited to mediation. While mediation can lead to better outcomes for both parties, it hinges on each person’s willingness to be transparent and honest.
If you want to remain the primary decision-maker in your own life, it’s worth considering mediation. Here at Haas Mediation, we offer a free 10-15 minute phone call to both divorcing spouses individually to help you decide if mediation is right for you. We’ve worked with couples just like you as they navigate the difficult path toward divorce, and are ready to answer any questions you may have.
Interested in learning more?
- Andrew Haas, Founder & Principal Mediator
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