DIVORCE - EQUITABLE DISTRIBUTION
Equitable distribution is the final distribution of marital assets and marital debts when a couple divorces. If an agreement cannot be reached by both parties, the court will intervene and determine how to divide debt and property. The judge will use his or her discretion to divide debt and property fairly, but not necessarily equally.
Neither fault nor marital misconduct is taken into consideration, but courts may consider length of marriage, previous marriages, ages of both parties, health of both parties, employability, non-marital assets, prenuptial agreements, who has custody of children, standard of living in the marriage, and tax implications.
Family law attorneys and both spouses must use documentation to determine the value of marital assets, the amount of marital debt, and the incomes of both spouses. It can be difficult to know the value of certain items, and careful assessment and inventory of marital property is necessary to ensure equitable distribution. Assets may include cars, home(s), furniture, businesses owned by both parties, jewelry, art, investments and retirements.
The following are examples of marital property:
- All property acquired by either party during the marriage, no matter whose name the property is in
- The increase in value, until the date of final separation, of non-marital property acquired by gift or inheritance
- The increase in value of property owned prior to the marriage or property acquired in exchange for property owned prior to the marriage until the date of final separation
The following are examples of non-marital property:
- Property acquired before marriage or property exchanged for premarital property
- Property excluded by agreement
- Property acquired by gifts or inheritance
- Property acquired after final separation, except where there has been an exchange for marital property
- Property which has been sold, conveyed or otherwise disposed of in good faith and for value prior to the date of separation
- Property to the extent that it has been mortgaged or encumbered in good faith and for value, prior to the date of final separation
- Payments received as a result of an award or settlement for a cause of action which occurred before the marriage or after the date of final separation
Purchases during the time period of the marriage will be deemed marital property, regardless of which person purchased it or whose name it is in. Properties excluded by prenuptial agreement will not be included. Gifts and inheritances may also be excluded.
Marital debts are those that were acquired by either spouse after the marriage date and before the separation date. This includes credit card bills, mortgages, car loans, home equity loans, taxes and judgments. It does not matter whose name is on the debt if it was used for a marital purpose.
A knowledgeable and experienced attorney is essential to ensure equitable distribution of property and debts. Negotiation is the best option, but litigation may become necessary. The outcome of these decisions may affect you for a lifetime, so you will want the fairest treatment possible. I can ensure that your interests are being fairly represented so that you will have peace of mind knowing that you are getting the best outcome possible.