All of the personal property and real property owned by either spouse becomes part of the marital estate, regardless of whether the property is held in the name of both spouses jointly or one spouse individually. The marital estate also includes intangible property such as bank accounts, employment benefits, stock options and pension plans.
The filing of the divorce petition creates an automatic restraining order on the marital estate, and neither spouse is allowed to dissipate assets from the marital estate. Each spouse may still spend money for usual day-to-day expenses, such as buying groceries and paying bills. However, neither spouse may close out bank accounts or sell off portions of the marital property.
The parties may agree to a division of the marital estate, or if the parties cannot agree, the court will order a division. In New Hampshire, there is a statutory presumption that the marital property should be divided equally, unless some factor exists which makes an unequal division more appropriate. The statute sets out a number of factors for the court to consider, including the duration of the marriage, the role each party played in growing or diminishing the marital estate during the marriage, and the fault of the party causing the breakdown of the marriage, if the divorce is based on a fault ground.
Misunderstandings and disagreements often arise over the division of personal effects. We recommend spouses exchange a list of personal effects and household goods each desires to receive. These issues hopefully can then be taken care of without court involvement.
Many parties suspect their spouse is hiding assets. Some are. The law requires both parties to make a complete disclosure of all assets and to account for any assets disposed of during separation. Through various techniques during the divorce process, hidden assets can often be discovered. If hidden assets are discovered after the divorce is final, an action may be brought to divide the newly discovered asset.
Kevin P. Rauseo is a former director at Hamblett & Kerrigan P.A. and has since been appointed as a Justice for the New Hampshire Circuit Court. Please feel free to contact another attorney at Hamblett & Kerrigan to discuss your legal issues.