For anyone contemplating a divorce, it’s natural to have questions about the process. With so many issues to deal with, from custody and alimony to property division, it’s easy to get confused about the process and how different things are dealt with. Let’s take a look at equitable distribution and what that means for divorcing spouses.
Marital versus separate property
At the outset of any divorce, property owned by the married couple is an issue that must be dealt with, and it can be complex. The courts will first identify what property is separate property – owned entirely by one spouse – and that property will remain with that spouse. All other property will be considered marital property and subject to the concept of equitable distribution.
Equitable distribution does not mean ‘equal’ distribution. Instead, it refers to ‘fair’ distribution and guides the court’s decisions as it divides marital property between the two spouses. Every marriage is different and so too is every divorce, with no two lists of assets being the same. As a result, courts approach each divorce, and the subsequent search for fair property division, on an individual basis. It’s important to note, however, that a couple can avoid equitable distribution and the court’s application of it entirely, if they can agree between themselves how their property should be divided.
The courts will consider many factors when they seek to apply equitable distribution. Among them are the contributions made by both spouses throughout the marriage, both economic and non-economic. Emotional value of assets can play a role, as well as the consequences of dividing the property one way or another. Taxes, the ability to meet financial burdens and to maintain certain assets can all come into play. Practically speaking, the court can draw on any and all information available to ensure its property division judgement is as fair as possible under the unique circumstances.