Dividing Property in a Divorce – How the Stew is Stirred

When I was first married, my wife cooked our first meal. It was beef stew. She didn’t

think it looked right, so she added corn starch. Then, she added more and more corn starch. The

result was – interesting. When she served the stew, I was first to take a bite. Not wanting to tell

my bride that the beef stew was difficult to chew and swallow, I took a number of bites without

complaint. My wife then took a bite. Once she did, she spit it out proclaiming that it was the

worst beef stew she had ever tasted. She then asked me why I had chosen to eat it and not

complain. I had nothing intelligent to say.

When I think of how property is divided in a divorce, I think of that pot of beef stew, but I

don’t begin cooking the stew if there is a valid prenuptial agreement. In other cases, I begin to

cook and as the stew is cooking, I add a little of this and a little of that. The final ingredients –

consisting of evidence – dictate whether the soup tastes good or tastes bitter. The ingredients are

all laid out. Just follow the instructions. Here they are.

1. Sprinkle in some personal information. We need information about the length of the

marriage. Once the marriage reaches a certain longevity, the marriage is treated as a true

partnership and absent other factors, the property gets divided equally – more or less.

Then, add information about age and health. This is an important ingredient because we

need to know where you are in your life’s journey. We then want to add information

about your social or economic status, your occupation, your vocational skills and your

employability. We really need to know a lot about you if we are to cook this stew

properly. We top it off with numbers – lots of them. Do you have separate property?

What about your income? Where does it come from? Finally, what are your needs

(income minus expenses – assets minus liabilities)? Okay – now stir. All of these factors

are an attempt at predicting the future. If one party’s future is brighter than the other, then

the property settlement can get skewed. Here is some more hot pepper for the stew: what

is the opportunity each party has for acquiring future capital assets and income? If one

party has a better future than the other, there will be an adjustment to equal. This will

change the flavor.

2. We now need to add information about children. When there are children, we look at the

ability of the custodial parent, if any, to engage in gainful employment. We also look at

the need of the custodial parent to occupy or own the marital residence and to use or own

its household effects. These ingredients make a difference as to how property is divided.

Okay – now turn the stove up a notch.

3. As the stove gets hotter, we need to know if there is one party that stands out – either in a

positive or a negative way. If the contributions of either party during the marriage caused

the marital property to grow in value, make note. If it went the other way – if the

contributions caused the value of marital property to diminish, make another note. We

also need to know whether there is any significant disparity between the parties in relation

to contributions to the marriage, including contributions to the care and education of the

children and the care and management of the home. We need to know whether one of the

parties made a direct or indirect contribution to help educate or develop the career or

employability of the other party. Finally, find out if either party interrupted their own

education or personal career opportunities for the benefit of the other’s career or for the

benefit of the parties’ marriage or children. There is nothing like a good sacrifice when

cooking stew. Now, stir.

4. Add more heat. We need more information about finances. Is there an expectation of

pension or retirement rights acquired prior to or during the marriage. Add that to the stew

along with a consideration of the tax consequences for each party.

5. Okay, now turn the heat up high – as high as it will go. Find out if there is fault by one of

the parties that caused the marriage to breakdown. If there was, find out if the fault

caused substantial physical or mental pain and suffering to one of the parties or it resulted

in substantial economic loss to the marital estate or the injured party. If this occurred,

give the stew a good stir because it is beginning to taste good to one party and bitter to the


6. Add information about the past. What is the value of any property acquired prior to the

marriage and property acquired in exchange for property acquired prior to the marriage.

We want to add that information to the stew. We also want to know what the value is of

any property acquired by one party through gift (from a living or deceased person).

7. Finally, add whatever else makes sense to the stew. Perhaps your grandmother left a


We are ready to test the stew. How does it smell? How does it taste? If you are not

satisfied, you need to change the ingredients.