While it is possible that a family court judge could order the property in a divorce case to be sold and the proceeds divided, the courts usually try to avoid it. As a general rule courts have no interest in getting mired down in the process of selling property, especially personal property.
While many believe that everything in divorce is divided "fifty-fifty," that is not truly accurate. Rather, the Court is to divide the property in equitable proportions. This usually means that the Court will require that for every dollar's worth of property one party receives, that party must also take a dollar's worth of debt to cancel it out. The idea is that each party will net out at zero. For example, if one party receives $100,000 worth of property, the Court will try to assign $100,000 worth of debt to that person. The other party may receive $50,000 worth of property and $50,000 worth of debt. While this division may not be "fifty-fifty," it is considered equitable since each party netted out at zero.
This is the general rule attorneys use in trying to negotiate a settlement of your divorce case. A problem can arise when neither party actually wants a certain pieces of property, such as the marital residence. In this instance, there may be little choice but to sell the property and divide the proceeds. This may be done by placing the property with someone specifically in the business of selling such property (a realtor in the instance of real estate for example) or having the property auctioned. The upside of an auction is that it gets the property sold quickly. The downside, of course, is that the property will most likely only fetch pennies on the dollar. If the parties cannot agree on a method of sale, the Court may be forced to decide.
Forcing the Court to decide on the method of sale may have unintended consequences for your case. Oftentimes, a great deal of the success of your case can come down to the judge's assessment of your credibility and even likability. Normally, the person who is being the most unreasonable comes up short in these types of cases. Therefore, if the Court determines that it must get bogged down in dividing property that no one wants at the final hearing because you have been the recalcitrant party, the Court may hold that against you in determining another issue.
As with most things in resolving a dispute in a divorce case, you should strive to be reasonable and listen to the advice of your divorce and child custody attorney.
Photo courtesy of Colleen Lane
Labels: auction, divorce, equitable, kentucky, marital property, paducah, property division, settlement