1. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Basic Principles of Property Real property is land and its affixed structures Personal property is everything else Multiple owners Tenants in common Joint tenants Tenants in the entirety Community property “…[P]roperty acquired during the marriage is presumptively marital property.” Campbell v. Campbell, 213 A.D.2d 10d 493 (A.D. 4 Dept. 1995)

2. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Pets as Property Awarded in property division Factors can include: Prior ownership Relationship to children Primary “caregiver” Courts will generally not enforce a schedule of visitation Parties may, however, handle this privately

3. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Separate Property Separate property is any property: Acquired prior to marriage Received by one spouse as a gift or inheritance Title is not dispositive Separate property can become marital property if: Re-titled jointly (gift) Used for marital purposes Commingled with marital property (failure to segregate) Marital effort or funds were used to maintain its value A valid premarital agreement can preserve separate property and determine its distribution

4. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Property Valuations and debt Research or experts needed to determine the Fair Market Value (FMV) Equity = FMV – encumbrances Marital debt is the result of pursuit of a family or marital goal When one party is charged with dissipation, he must prove by clear and convincing evidence that the questioned expenditures were made for a marital purpose….” - Szesny v. Szesny, 557 N.E.2d 222 (Ill. App. 1990) “

5. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Community Property Based on Spanish or French Civil Law instead of the British Common Law Both spouses acquire an equal interest in all property acquired during marriage, giving rise to a presumption of a 50/50 split All debts incurred by either spouse during marriage are community debts Some state permit adjustment for separate property contributions or in the interests of fairness Upon the death of one spouse, half of the marital property passes according to testator’s will or by intestate succession, potentially by-passing the surviving spouse Jurisdictional issues are settled in numerous ways – check state law

6. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Intangible Marital Assets Business Goodwill Post-secondary or professional degree Some states treat it as marital property Some states use it as part of a determination a fair alimony award Pensions Unvested pensions are expectancies, not property Value of marital contributions during coverture can be determined by Qualified Domestic Relations Orders (QDROs) The value of the pension can be offset, bought out, the pension can be liquidated, or the non-pensioned spouse can defer receiving a share until distribution (QDRO)

7. Luppino and Miller: Family Law and Practice: The Paralegal's Guide, 2 nd ed. © 2008 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved Distribution of Property Equitable distribution states Marital property will be divided equitably, although not necessarily 50/50, and parties retain their separate property (unless a distributive award is ordered by the court) Community property states Marital property is divided 50/50 and parties retain their separate property, although some states “soften” this rule Courts can “punish” dissipation Overspending during the course of the marriage Overspending in contemplation of divorce Overspending upon notice of an impending divorce Destroying, giving away or selling spouse’s property