WHAT MAKES PROPERTY DIVISION DIFFICULT IN A DIVORCE AND HOW TO MOVE BEYOND THAT DIFFICULTY?

When a marriage dissolution case goes to a court trial, property division all of a sudden becomes fairly easy. The court is presented with a list prepared either jointly by both spouses or separately by each one listing all community assets (property acquired during marriage) and all separate property assets (property acquired before marriage) with all the encumbrances (loans) and reimbursable claims. The list is just that a list without all the emotional and psychological baggage assigned to a property during a divorce.

For a divorcing couple, whether they are litigating or mediating, property has meaning and significance beyond the fair market value and encumbrance. The property now is a symbolic emotional representation of the failed marriage.

When a couple purchases their family residence, starts having children in that home, celebrates holidays, birthdays and builds their good memories in that home, in a divorce the family home becomes a very touchy subject loaded with all the emotions of divorce: guilt, regret, anger, revenge, hatred, disappointment, insecurity, hopelessness etc. The family residence becomes a representation of all the loss.

To settle property issues either during litigation or mediation, both parties have to be ready to let go. The process of letting go may include identification of emotions and separation of those emotions from money, property, children. Readiness to settle may be accomplished by taking baby steps. Baby steps can be taken quite quickly with the right guidance of an attorney or a mediator, who can help the couple do uncoupling work. Facilitating the process of identifying the emotional baggage associated with a property frees that property for disposition during a divorce. Parties in a divorce often use money, property, children to get back at each other, to hurt the other, to revenge. Identifying the emotions and redirecting them so they can be addressed, clears the path to settlement.

 

Changing the name of the process is useful as well. Instead of the word “division of property” it may be useful to use the word “disposition.” The word “division” means the action of separating something into parts, or the process of being separated or disagreement between two or more groups, typically producing tension or hostility. “Disposition” on the other hand means the way in which something is placed or arranged, especially in relation to other things and the power to deal with something as one pleases. Marital property becomes arranged differently in relations to the parties’ financial situation after separation, other assets, needs of children etc. So, either in litigation or mediation, it may be very useful to look at property and emotional burden of each party to see if there is an emotional lock placed on the property. To then unlock it, couples must be facilitated through the process of separating emotions from property.