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Divorce and Dividing Property in an Equitable Distribution State


Divorce laws and the division of marital property vary from state to state. While a few states practice the concept of community property – in which all property is divided evenly – many more states follow what is known as equitable distribution.

If you are divorcing in an equitable distribution state, you will need to understand what considerations are taken into account for division of property in that state.

Equitable division ideally will grant each spouse an equal and fair settlement. This method leaves room for the court or judge to decide what constitutes a fair settlement and there exists flexibility when assessing the financial well being of each spouse individually.  

Listed below are some of the key factors that come into play when dividing property in an equitable distribution states. Consult with your divorce attorney to see if any of these conditions apply to your divorce:

  •  Income potential. If one of the spouses draws a significantly larger paycheck or is in a position to earn more income than the other spouse, a judge might rule to give more property to the spouse with the lower income potential.
  • Financial frugality and waste. This also is known as economic fault. If one of the spouses spent marital funds in an improper or irresponsible manner – gambling losses, gifts for on-the-side romantic partners or excessive loans given to family members or friends – particularly during the collapse of the marriage, that spouse might be held liable for the loss of property and assets.
  • Length of marriage. The longer you and your spouse were married, the more likely the judge is to view you and your estranged spouse as equal partners in the marriage. Therefore, the court is more likely to grant a larger percentage of property to the spouse with less income.
  • Time spent as primary homemaker. A court can look favorably upon the homemaker in two ways. First, because having one spouse at home to care for and raise children and tend to household needs (cleaning, maintenance, bill paying, etc.) enables the other spouse to pursue work outside the home and achieve higher income potential. Second, the spouse that acted as the homemaker might be able to argue that they lost out on the opportunity for training and employment opportunities because of their homemaker duties.
  • Prenuptial agreements.The existence of a written, pre-marital agreement as to the division of marital property upon divorce is typically the primary deciding factor in a case. Most courts will not overrule the contract, provided it is valid.
  • Spousal well-being. If the income potential for one spouse is adversely affected by advanced age or poor health, the court is more likely to award a higher settlement to the spouse whose income potential is less than the other.
  • Accumulation of separate (non-marital property). In the instance that one spouse possesses significantly more separate properties (for instance, through inheritance, gifts or pre-marriage acquisitions) a court might rule in favor of the spouse with less separate property and assets.
  • Earned assets and property. The court sometimes will recognize the significant labor of one spouse as a deciding factor in who will receive the larger percentage of a property. For example, if one spouse was significantly more involved with a family business, the court might grant the business to one spouse, while granting the family home to the other spouse.

 Prior to the late-1960s, the court also often considered “fault” when dividing marital property. This meant that if one spouse could prove abuse, neglect, infidelity or similar infraction, their potential for a favorable settlement was much greater.

These days, the courts are more interested in giving both spouses equal financial footing after a divorce, and less concerned with determining who is at fault for the collapse of the marriage. 

Property laws can be complicated and vary from state to state. It is important to speak with an attorney who specializes in family law before making any hasty decisions during a can help you find an experienced divorce lawyer in your area. Complete our short questionnaire today!


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