Dissolution Discovery

By the

Law offices of

Wm. D. Piedimonte

Piedimonte and Associates, P.C.

317 W. Kansas

Independence, MO 64050

(816)836-8900

Overview

• 1. In the first section, we will look at some general concepts you should keep in mind while filling out your marital property statement.

• 2. In the second section, we will actually go through step by step and fill out the form.

• 3. Go at your own pace. Hit the space bar for the next slide.

What is Discovery? • Court has rules that you must follow to exchange

information– One of the rules is that all parties must complete certain

information and exchange that information with the other party.

– The information must be completed within a certain period of time. In most cases that time is 30 days.

What happens if you do not follow the rules?

• If you do not complete the information or you do not complete it in time, the other party through his/her lawyer may file a motion with the court asking that you receive sanctions. Sanctions are another way of asking the court to punish you for not following the rules.

Sanctions– You can be sanctioned for not completing the Discovery

or not completing it on time.– Sanctions (Punishment) can include not being allowed

to go forward with your case. The Court can dismiss your case and order you to pay the other parties attorney’s fees if you do not follow the rules and complete the required information.

Avoid Sanctions

• The purpose of this material is to assist you in completing your discovery accurately and on time

Marital Property Statement

– One of the rules requires you to fill out a marital property statement. This is probably the single most important document you will complete in your discovery packet.

A few principles when you complete your marital property statement

• You must list all of your property. – If you leave out property or fail to list it, your dissolution may not be

final. The Court is required to divide all marital property. If you forget to put something down, you may find even years later, your spouse can come back to court and ask that that property be divided.

• You must value your property.– The value of the property is “market value”. This means what would

someone pay for your property today in the condition it is in. Sometimes we refer to that as “garage sale value.” It is not what it costs to replace the item or what you originally paid for it.

Property is divided equitably

Generally speaking, the Court is going to divide the property “equitably.” This does not necessarily mean exactly “equal” but as a practical matter, each side is going to be entitled to approximately ½ of the property. There are exceptions to this rule and your attorney will help you with how to handle those situations.

Dissipated assets

• One exception is if your spouse has taken property and spent it or hidden it. We call that a dissipated asset. In such a case, you should still list the property but note it and talk to your attorney about it.

You need to decide who has the property and who will get the property.

– Keep in mind that this is the first document the other side will see about the property. Just because you put it down one way doesn’t mean you can’t change it later as to who will get the property. It may be that you are asking for it now but later you may decide to give it up.

You will need to designate if the property is marital or non-marital

– You should start out with the idea that All property acquired after the date of the marriage is considered martial property.

Marital vs. Non-marital

An exception would be if you personally received a gift even if it was from your spouse. That would be a non-marital piece of property. Example- your wedding ring.

– Another exception would be if you received an inheritance.

Marital vs. Non-marital (cont.)

Property you had before the marriage is, generally, non-marital property.

Property can be non-marital but then turned into marital property.

If you got an inheritance and deposited into a joint bank account, that could turn the property into a marital asset. In those kind of situations, your attorney needs to know how the property was acquired and how it got into the joint account. Be sure to discuss any situations that you are unsure how to designate whether your property is marital or non-marital, with your attorney.

Complete each section of the marital property statement

There may be changes along the way as to who you would like to have the property and changing values. What you are trying to do by completing the form, is to give your attorney enough information to know where there may be problems and in the end to help you determine what is a “fair” division of the marital estate.

Now we’ll start to complete the Marital Property Statement

Real Estate– In the first box, you are asked to give

• the interest including lease holds. If you own the property with someone else, be sure to list with whom you own it.

• address,

• legal description,

• and name of lender. The name of the mortgage holder where you pay your house payment.

The legal description– The legal description is found on your deed or your deed of trust. It is

usually in that big pack of papers you got when you bought your house.– The legal description will look something like: lot 4, Highland Heights, a

subdivision in Independence, Jackson County, Missouri according to

the recorded plat thereof. – Sometimes the legal description will be a long description like: beginning

at the SW corner of Section 41, township 12, range 8, then east 150 ft, thence proceed south for a distance of 200 ft, thence west 140 ft, thence on a straight line to the point of beginning.

The Legal Description (cont.)

• Do not rely on your tax assessment card. These descriptions are often abbreviated. It is important that you get the correct description because it is from this marital property statement that other deeds may be drafted if you were to get the property as your own.

Fair Market Value• This is the value that you think someone would pay for the property if

it were up for sale today in the condition it is currently in. It may be more than what you paid for the property or it could be less. It is tempting to “fudge” on the value. You might think,”if my spouse is going to get this property, I want to list it at the highest possible price so he’ll owe me more money.” However, you might end up with it. Your best course of action is to be as accurate as you can. If you are unsure how to come up with the price, discuss that fact with your attorney.

Amount Owed• Most of the time, this is the mortgage. What is the payoff?

You may have to call your mortgage company to get this information if it is not available on your mortgage statement when you pay your house payment each month.

Equity• Equity is the difference between the “fair market value”

and the “Amount Owed”.• (fair market) – (Amount owed) = Equity

Who should have the property?

• You have to state who will get the house. If you want it, put down H or W as the case may be in the “To” column. If you want to sell it, put down H&W and note “sell and split”.

Possession• You have to state who has possession of the property. If

you are in the house and your spouse is living else where, put down (H or W) for yourself as the case may be. If you are both in the house, put both “H&W.”

Motor VehiclesYou are asked to list:

– all automobiles, boats, trailers, aircraft, recreational vehicles and campers.

– year– make– model– vehicle identification number– leasehold interest

Vehicle Identification Number– Located on the dash in the left hand side up by the windshield or

on the car title. Get the number correct. It will be used to draft documents later to give you the vehicle so you can have the vehicle put in your name with the department of motor vehicles.

Fair Market Value

you can obtain the fair market value from your banker, buy a book at the bookstore like Kelly Blue Book, look in the newspaper or go to used care values on the internet like: www.kbb.com

Amount owed

This is the payoff. You may need to contact your bank or finance company where you pay your car payment to get the “payoff” figure.

Equity

This is the difference between the Fair Market Value minus the Amount owed (FMV-Amount owed = Equity)

Who gets it and who has it?

– To H W.• who should get it?

• put in H or W (husband or wife)

– Poss’n H W• who has it?

Bank AccountsYou are asked to list all your – Saving– checking– money market– certificates of deposit

Bank Accounts (cont.)• You are asked to list

– the names on the account,

– the institution. (The bank or credit union where the account is kept.)

– the account number

– balance in the account

Bank Accounts (cont.) Names• If you have money in an account, whether your name is on the

account or not and whether you can sign on the account, you need to list the account.

• If you think your spouse has an account, even if you don’t know all of the information, list that account here with what information you do know.

Fair Market Value and Equity

– Fair Market Value is the balance

Amount Owed

– Amount Owed could be any loan against the account. This would be rare.

Equity– Equity is generally the balance It’s the same

figure. (Unless there is a loan against the account.)

Who gets it and who has it?– To H W.

• who should get it?• put in H or W (husband or wife)

– Poss’n H W• who has it?

Securities• List your stocks, bonds, and mutual funds here. • For fair market value, put in the value on the date

you are completing the form and put the date next to the value. As it will change this will help with when the stock or mutual fund was valued. Sometimes you may not know the actual stocks but you will know the brokerage house and the account number. Any information you have that would help locate or identify the account will help.

Whole/Universal Life Insurance– The name of the company that holds the policy and the policy

number are important. This information is used to transfer the policy from one person to another. Without the policy number, you may not be able to have the policy put in your name alone if your spouse was also on the policy

– Having a copy of the policy is the best way to insure you are getting all of the correct information. If you do not have a copy, talk to your attorney about what you need to do to help complete this section of the marital property statement.

Face Amount and Beneficiaries

• Put the face amount along with the other information requested in the first column.

• Beneficiaries of the policy should also be noted in the first column. It may be that your spouse is a beneficiary and that will have to be changed later.

Whole/Universal Life Insurance (cont.)

• The Fair Market value is not the face Amount. It is the cash value—sometimes called the loan value.

Value of the Policy• The Fair Market Value of whole life policies is

sometimes difficult to figure. Most policies have a table in the policy itself that can be used to calculate value. Your attorney can help you with this if you have a copy of the policy. Otherwise, you may have to write or call the company to determine the value.

Whole/Universal Life (cont.)• It is equally important to determine if there is a loan against

the policy. You would put the loan amount in the column for the Amount Owed and make a note to discuss that with your attorney.

• Again, the difference between “fair market value” and “loan amount” is the “equity”.

Whole/Universal Life (cont.)• Who gets the policy? Even if the insurance is on

your spouse’ life, you can be an owner of the policy and decide who will be the beneficiary.

• Possession of the policy is who has the physical policy.

Term Life Insurance.– Most policies that are provided by your employer are term policies.

That is to say, you will not have the insurance once you stop working for your employer. As such, these policies do not have any “fair market value”. Put in $0 for “fair market value” and $0 for “equity”. Of course, you still want to designate who gets the policy and who has the policies in the last 2 columns.

– Sometimes, however, couples buy term insurance for a variety of reasons. Again, getting a copy of the policy and showing it to your attorney if you are in doubt will help you complete this section.

Retirement/pension or profit sharing.

– Some pension plans will have values that you can determine from the reports that you get from the employer. These accounts, like 401K’s or thrift savings accounts, will be relatively easy to determine the fair market value. Simply put in the amount from the statement or report.

Retirement/pension or profit sharing (cont.)

• Other types of pension plans will not be as easy to determine the “fair market value.” The pensions that report how much money you will receive “monthly” at sometime in the future, will need to be calculated for “fair market value”. The “fair market value” is not just the monthly amount. Your attorney will help you calculate the value and explain just what “present value” means to you. Often, these values are one of the largest assets in most marital estates.

Retirement/pension or profit sharing (cont.)

• Also remember, you are listing your spouses retirement information. Even if your spouse started work before you got married, you may be entitled to list a portion of the pension as marital property. Your attorney will help you determine how that is done.

Loans against Pension Plans– Sometimes loans are taken against the pensions or thrift

plans. That information should be noted in the column for Amount Owed.

– If you don’t know what to put down, put as much information as you do know and leave the values blank. Your attorney will help you complete the rest of the information

Debts owed to youIf someone owes either you or your spouse money, list it here. Put in the name and address of the person and if the debt is not yet owed but will be owed in the future, put in the date it will be do. The amount owed will generally be put under “fair market value” However, if the debt is uncollectible, you might be listing it as “fair market value”

$0.

Debts owed to you (cont.)– Sometimes this will be investments where you have sold

property and someone owes you for the property and is paying it off on a monthly basis. Your attorney will help you determine the value in those situations.

– Again, do you want the debt paid to you or do you want it paid to you spouse will be your decision by placing H or W in the column as to who should get the debt.

Sole proprietorships, joint ventures, partnerships.

– List the business name and whether it is a corporation and who else may be involved in the ownership of the business and their percent of ownership. Your attorney will help you fill out the rest of that portion of the form if you are unsure what to do. This is the most difficult asset to determine it’s “fair market value”. In many cases the value is nothing but in other cases, the value may be significant. Your attorney may also discuss with you the possibility of having the business professionally appraised in some circumstances.

Claims or lawsuit against others

Put in all the information called for in the first column. Your attorney will assist you in valuation after discussing this item with you. The value of a lawsuit is not what your asking to collect. Additionally, there are certain laws that impact how to figure “martial” values in the case of workers compensation claims, or other types of claims.

Claims or lawsuit against others (cont.)

– Also, be sure to note on the form if you owe any support to another person. This will affect the value of the claim and should be discussed with your attorney. It may be a lien on what ever proceeds you ultimately get in the suit.

Cash on hand– While most people think of this as the money you have

in your billfold, do not forget the change jar, money in the back yard, refrigerator, or where ever cash money is being kept. Even if you can’t find it right away because your spouse has taken it, list it here but note who has it. The coin collection could be listed here or under “other assets” in “M” below. A coin collection may be worth more than the value of the coins.

Household and Personal Goods

– Start on the pages 6,7,8,9 attached for listing your personal property. You will then total and go back to page 3.

Page 6

Page 3

Household and Personal Goods

– The property in your possession, generally furniture and household items, list individually. You can list general items such as Pots and Pans, or “sheets and towels” as one item and value the total. If you have a particular item or items that you want to make sure you have, list it out. If it is not on this list, you cannot be sure you will get it.

Household and Personal Goods (cont.)

• Valuing personal property is sometimes a tricky business. Think of “garage sale value” on your furniture. Even though you paid $1500 for the couch last week, you would be lucky to get $150 for it in a garage sale. Most folks have a tendency to over inflate the value of their furniture.

Household and Personal Goods (cont.)

– You want to list both what you have and also what your spouse has. These values will go into the overall value of the property division and may help you get your fair share of value in the marital estate. If you are in doubt, put it down on the list.

Household and Personal Goods (cont.)

– Some folks have heard it’s a good idea to value the property your spouse has high and the property you have low. Try not to go there. The Court has seen parties that inflate values. Remember the Court could give you the inflated item. – saying in effect, if you think it’s worth that much then you get it.

Other Assets.– Anything else that you have, if you don’t know

where to list it, put it here.

– This is a good place to put your pets. Also remember, “Fido” may be worth a lot to you but he may not be worth anything to someone else.

Non-Marital property– Definition of Non-marital Property

• Everything you had coming into the marriage• Gifts you personally have received from others or even your spouse• Money or property you have received from inheritance. You will want

to discuss with your attorney what to do about money that you have deposited in joint accounts with your spouse or money you have used to purchase other items for both you and your spouse.

• Money received from someone’s life insurance.• Items you have that have replaced property you might consider non-

marital property.

Non-Marital property (cont.)

– Non-marital property is not used to value the division of marital property so try to list everything that is non-marital both for yourself and for your spouse.

DebtsPlease be as accurate as possible on the debts that you owe. Fill out all information requested.– It is very helpful to list account numbers for credit cards.

– List if you are both obligated or just one of you on the debt..

– You should also discuss with your attorney what happens on a particular debt if you or your spouse doesn’t pay what he or she is supposed to pay.

Final Thought– Now you have completed your marital property

statement. Drop it off at the attorneys office. If you have followed these instructions, you will have very few questions asked of you. If you have not completed the form fully, the attorney or his staff will be in touch as to getting additional information.

– Remember, the more information you can supply at the beginning will save you money in attorney’s fees later.