We own real estate and pensions. How do we divide these assets fairly in our divorce?
Thursday, June 24, 2010 at 12:41PM All of the parties’ separate and community assets are before the court for division in a marriage or domestic partnership dissolution case. The court must apply the statutes and case law to arrive at an equitable distribution of these assets. Often the most valuable assets a couple owns are their real estate and their pension, retirement and 401(k) plans. It is very important that before you participate in a settlement conference or trial of your dissolution case that you know what these very significant assets are worth.
Value before you divide. The best way to assure both parties that your real estate and pensions are fairly divided is to first have them valued by experts. You may also agree on these values, but if you cannot, then you must hire experts to give you reports of value.
Appraise your real estate. You should have your real estate valued by an appraiser who will provide an opinion of value specifically tailored to asset division in a domestic relations case. The appraiser will personally inspect the property, consider the owner’s statements as to the property’s condition, review the public records regarding recent sales and economic trends and produce a detailed written report of his or her opinion of the property’s value. This expert is also qualified to provide information during your settlement conference or to testify as an expert at trial if necessary. The typical fee for a real estate appraisal report is around $500. This may seem like a lot of money to spend, but it is worth the investment. With this information, you will settle or try your case with accurate numbers and you will know that whatever agreement you reach was based on the right value.
You or the other party may have both pension or retirement plans and 401(k) or similar plans. If you have a 401(k) or similar plan, you have what is called a contributory plan. In other words, you (and often your employer) contribute your own money to the plan for your retirement. These plans differ from noncontributory pension or retirement plans in that only the employer puts money into your noncontributory plan. It is not uncommon for a person to have both a pension or retirement (noncontributory) plan and a 401(k) or similar (contributory) plan. Be careful to find out which type of plan or plans you and the other party have before settling or trying your case so that a fair settlement or judgment is reached considering all assets of both parties.
Obtain a “present value” for your pension and retirement plans. If you or the other party have pension or retirement plans, you should hire an actuary to value them. This expert will produce a detailed written report of his or her opinion of the value of the pension or retirement plan. This expert is also qualified to provide information during your settlement conference or to testify as an expert at trial if necessary. The actuary will calculate the “present value” of the plans based on many factors, including the monthly benefit, the age and gender of the person receiving the benefit, whether the beneficiary is vested in the pension, and whether the person is already in retirement. The present value of the pension is a very different number from the monthly benefit. It is possible that a pension paying out a $2,000 monthly benefit may have a present value of several hundred thousand dollars, depending on the factors discussed above. Once you have the present value number, you can negotiate to fairly divide it. This valuation should cost around $250 per pension.
Obtain statements for your 401(k) or similar plans to determine their value. You do not need to pay an expert to value a 401(k) or similar plan. To value this type of plan, you need to obtain the statement as of the date you want to value it. For example, you may have been separated for several years and are just now getting around to finalizing your dissolution. If you have or your spouse has continued contributing to a 401(k) plan, you would likely want to value it as of the date you separated, not the date you finalize your dissolution. That way, only the community-property share of the 401(k) plan is divided. If you file for dissolution close to the time you separate, your most recent statement would probably be the most appropriate to use.
If you have questions or concerns about this issue, feel free to contact Pro Se University or call us at (877) 776-7310. Also, be sure to buy tickets to our upcoming Ex-Po- September 26, 2010.
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