Most of the personal property you accumulated during your marriage is easy to divide when you divorce—well, not easy in the sense that it is pleasant to do, but easy in the sense that, in the eyes of the divorce court, there are well-established rules for valuing and dividing it. You may not find it pleasant at all, for example, that your ex-to-be is entitled to one-half of your retirement for the amount you acquired between your marriage and your divorce, even though only you worked, but this is the rule in almost all states.
But, there is some personal property that is either too difficult to value, without risky assumptions, or too difficult to divide, or both. Here is how to deal with the more common of them--
Crops & Mineral Rights– Crops are usually a property right separate from the land on which they grow. So too are minerals below the land. If you have already divided these during your marriage, you should receive payment periodically for them (e.g. for annual harvesting), and you should decide whether to include the payment as income to the recipient, for support purposes, or as property to be divided between the two of you. If you have not divided them during your marriage, then be sure to do so during your divorce – particularly if your ex-to-be is retaining property that is potentially rich with crops and/or minerals. You may do this by selling the rights during your divorce and splitting the profits; dividing the profits in the event of a future sale; alternating years in which you each receive payment or property (e.g., odd years, you harvest); or asking for your appraiser to appraise the property with the crops and/or mineral rights included, though this carries with it assumptions about the market that you may not wish to take.
Pending Bonus – Bonuses for work performed during the marriage are almost always marital property, but what should you do if payment is delayed until after divorce? Similarly, how will you know if your then-ex receives a bonus? If you are settling your case, require that you each disclose any bonus received (and, if not, forfeit it entirely) for the year in which you were divorced. This may be by requiring disclosure of the paystub, a letter from HR, a tax return or any number of these. Then, decide upon a percentage to award the other spouse, such as one-half for the prorated amount allocable to the months of your marriage (e.g., if you were married one-half of the year, then one-half of one-half of the bonus goes to each of you). If your case goes to trial, ask the judge to order these things.
Pending Personal Injury Lawsuit - Similarly, a personal injury lawsuit that settles or results in judgment after your divorce, for an injury that either of you sustained during the marriage, is also potentially marital property. The injured spouse is going to assume the award is his or hers; after all, that spouse sustained the injury. However, most personal injury lawsuits will include a claim for the other spouse for loss of services (consortium claims), and most awards will include compensation for economic damages (lost pay, reimbursed medical bills, etc.) in addition to pain and suffering. The pain and suffering award belongs to the injured spouse, the loss of services to the non-injured spouse, and the rest potentially to both of you. So, like the bonus payment, require full and complete disclosure, and assign a percentage to be paid to both spouses, likely one-half for economic damages sustained during the marriage.
Pending Workers Comp Claim – By comparison, a workers compensation claim is entirely for loss of wages, not pain and suffering. For some employees, the works compensation benefits will be paid regularly for loss of pay, plus a back-payment for the time between the date of work loss and the date benefits went into effect. Talk with your lawyer to decide whether to treat that back-payment as property to be divided between the two of you or as income to the recipient for support purposes.
Taxes – If you divorce before the end of the tax year, and cohabitated priorto, decide who gets to claim the marital home for tax purposes, including deductions and credits for such things as mortgage interest, property taxes, certain energy-saving repairs, and so forth. For example, mortgage interest is a sizable deduction, one both of you will probably want to take if you cohabitated, and you could trigger an audit if you both deduct all of it. You could simply defer to the tax code (which tends to favor the person residing in the home the longest, or the person with the higher income, and usually both), but the tax code also usually allows divorcing spouses to deviate and come up with their own plan. The best thing to do is meet together with a CPA to decide whether to delay your divorce until after December 31st; or divide the exemptions/credits/deductions at tax time; have one spouse take them and pay a percentage of the return to the other spouse; or have one spouse take them and include the refund as income for purposes of support.
Whatever you do, do not assume that only the property you each have now should be divided when you divorce - these future payments are valuable, sometimes even more valuable, and should be addressed in your divorce, too.