Topic 7: Property Division - Real Estate

Posted on April 2, 2010 by Nancy Van Tine

Hi there,

The 7th topic to consider is part of the property division.  This is controlled by Massachusetts General Laws chapter 208, section 34.

Volumes have been written about this and frankly it is an area where cases that may go to trial as valuation issues, particularly with businesses, can be intractable.

Below is an general outline of some issues to think about when dividing real estate, though every month someone comes up with something new, so this is NOT all inclusive.

Your home:

  • If you rent this is simpler; however, there may be lease issues, such as who is on the lease, or will one of you need to indemnify the other?
     
  • If you own, consider who will have use and possession during the divorce and what will happen with eventual ownership.  If there is a sale or transfer within the couple or not, you need to think about the tax issues, including capital gains (don't forget the exclusion on sale for your primary residence), as well as who deducts the interest and real estate taxes.  You will have to decide how the bills are paid pre-divorce.  Will the mortgage need to be re-written to remove one party post divorce?  If there is to be a sale or transfer there may be timing issues to consider as well, such as when the children finish a school year or a certain grade.
     
  • Then there is your other real estate (vacation house, rental or business property, time shares,  etc).  Many of the same considerations may apply as with your home, but the capital gains tax will be different.

All of these additional properties will need to be valued as well.

Best,

Nancy

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Step #4 Discovery; which is just that

Posted on April 8, 2009 by Nancy Van Tine

Hi there,

Discovery is the point in the process where the attorneys, using various legal tools, are able to quantify just what is going on financially, as well as with other concerns, such as custody or parenting issues.

The first financial discovery tools are the Rule 410 production and the financial statement, both of which are described in a prior post. Once those have been exchanged, the attorneys usually move on to Requests for Production of Documents (RPD) which are expansions on the Rule 410 production. If yours is a case where there are business valuation issues or a need for a forensic accountant (more on those in later posts) then those experts will chime in here with a request for the documents they will need.

At the same time as the RPD is sent out, the attorneys often will exchange Interrogatories, which are a limited series of questions to be answered under oath. Generally the lawyers also ask what are called Expert Interrogatories, where we request information from the experts and their reports so that both sides know what all of the valuations are. These experts can range from real estate appraisers, business valuators and forensic accountants, all the way to doctors and psychologists etc. if there is a custody issue or a medical issue involved.

Once the documents have been exchanged and the Interrogatories answered, (the rules provide time frames for these - which generally are expanded) the next steps are depositions, which are sessions in which you and your spouse, separately, are brought into the opposing attorney’s office to answer questions under oath. In addition to each spouse, depositions of other folks occur as well. Depositions are so complex I will do a separate post on them later.

The rules also allow for requests for medical examinations, examinations of real estate and art antiques, etc. as well as a nifty document known as Requests for Admissions. This permits one side to really pin down the other by requiring them to admit to or deny facts. If they deny a fact that you later prove, they have to pay the cost of the proving. This is an effective procedure that is used a lot in civil practice but not frequently enough in divorce cases.

Discovery can be lengthy and extremely expensive but also is a very necessary tool in many cases.

Take care,
Nancy

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