CONTESTED PROPERTY DIVISION IN DIVORCE: SOME TECHNIQUES

Divorce, even collaborative or “amicable” divorces, is never easy. The dissolution of shared, intertwined lives is more complex than people realize, and this is never more obvious than when the time comes to divide property between spouses. Suddenly, objects no one has thought of in years become incredibly valuable, and often, competition and passive-aggressiveness turn what should be a simple negotiation into a lengthy and combative process. While this is most common when the property in question is valuable, it occurs just as often with items of sentimental value.

Combative attitudes regarding property division can quickly derail a mediation or collaborative divorce and lead directly to expensive and lengthy litigation. To head that off, there are several tactics that can be employed to facilitate an equitable and fair division of property without leaving either party feeling abused.

Let Them Have Cake

The key to all of these techniques is to share power between spouses so they are a check on each other. The simplest and most direct way of doing this should be familiar to any parent who has been faced with distributing the last treats to a pair of siblings: You empower on child to cut the slice, but the other to choose which one they want. Without implying that divorcing couples are children, the same basic technique is quite effective: One spouse creates two lists of equally-valued property. The other spouse gets to choose which list they want. This encourages Spouse #1 to make up two equitable lists as they won’t know which one the other will choose.

The Auction

Another way to divide power is to take it away completely. The Auction technique accomplishes this with two steps. First, each spouse enters a sealed “bid” for every item of property on the list. The highest bid wins that piece of property and the value is added to a list. At the end, each side is added up, and any difference in value is made up from other property. Because the spouses can’t see each other’s bids but know that inequities will be evened out in the end, they are encouraged to bid sensibly. An overbid simply to deny the other spouse a piece of property will result in a “penalty” when the values are evened out.

There are many variations on this concept, but all have the same dynamic: Keep control of the division of shared property so that neither spouse has a clear advantage. This will encourage both spouses to work within the system imposed, helping to bring about a fair distribution.