In most states, family law courts divide marital property per the legal theory of equitable distribution. One of the most common misconceptions that divorce lawyers – including those who practice at the Winfrey Law Firm, PLLC – find themselves needing to clarify involves the idea that equitable distribution is the same as equal distribution. Equitable distribution does not mean that you and your spouse will both receive 50% of your marital assets. If you’re in the process of divorce in a state that recognizes equitable distribution, it is therefore important to understand that an equitable property division settlement does not necessarily mean that you and your spouse will each walk away from your marriage with 50 percent of your marital property in hand.
What Is Equitable Distribution?
Equitable distribution is based on the concept of fairness. Fair does not always mean equal. In some cases, 50% splits are not fair to both parties. For instance, if one spouse inherited a great deal from their parents during the marriage, it is not necessarily fair to award half of that adult child’s inheritance to their spouse. In addition to taking special circumstances into account, equitable distribution may also consider abuse and other acts of fault. For example, a victim of abuse may receive a higher percentage of the marital property in question to allow the person to get back on their feet after leaving the abusive union.
How Are Property Division Matters Resolved?
No matter which state you live in, you have the right to decide what is equitable. If you and your spouse agree on your assets and debts, you have the right to construct your own property division agreement. The court does not have to intervene. However, no matter what agreement you come to, the court does have to approve it. If you and your spouse agree to a settlement without judicial intervention, the court must determine whether the agreement is valid and that both parties have had their needs met. For example, your spouse cannot force you into an unfair agreement and expect the court to uphold it.
If you and your spouse cannot agree on a settlement and a judge is compelled to intervene, they will consider a few different factors. The first factor is how long the two of you were married and whether you have children. Next, the court will consider your financial needs and liabilities. For example, if one spouse took time off of following career prospects to raise children, they may have less capacity to earn money. In these cases, awarding spousal support may be fair. The court will calculate the total value of your separate property and marital property before dividing assets in an equitable way.