One of the most important legal issues that a family court deals with during a divorce is how to divide the couple’s property. Every state has their own laws governing how to divide this property, with most following one of two schemes: the community property method, or the equitable distribution method. 

The more common scheme is equitable distribution, with well over half of U.S. jurisdictions structuring marital property division according to this type. So how does equitable distribution work, and how could it affect you during a divorce?

What Is Equitable Distribution?

As stated above, all jurisdictions use one of two property distribution schemes during divorce proceedings. The goal is to divide all marital property between the spouses, which includes all earnings, all property bought with those earnings, and debts accrued during the marriage. Any property acquired by gift, divise, or or bequest is considered the separate property of that specific spouse. 

The less common method to divide marital property is known as the community property method, where the default is to divide all marital property 50/50. States that use the equitable property method approach property division by considering what is a fair division. This does not necessarily mean that the split will be even. 

The aim here is to consider the facts of each case and the needs of each party in the divorce to make the division as fair (not necessarily equal) as possible. There are a number of factors that the court will consider when they divide property.

What Are the Factors Considered in Equitable Distribution?

When a judge looks to divide marital property during a divorce, they know that each case is different. Thus, the goal of equitable distribution division is to take the specific circumstances into account to put each spouse on as fair of terms as possible once the divorce is final. This may ultimately mean that one spouse will receive a larger share of the marital property. 

The factors that the court considers include:

  • Duration of the marriage;
  • Which spouse will have primary custody and physical care of the children;
  • The current and future financial needs of each spouse, including a potential need for future education;
  • Current financial position and earning potential;
  • Monetary/property contributions of each spouse to overall marital property;
  • Non-monetary contributions to the marriage, such as child-care and labor in/on the family home;
  • Age and health of the spouses;
  • Overall value of each spouse’s separate property;
  • Any legal obligations (alimony and child support) one spouse owes from previous relationships; and
  • Adverse behavior by a spouse (debts, affairs, domestic violence).

These are some, but certainly all of the factors that a family court will consider during the property division phase of divorce proceedings. For a more complete list you will need to consult with an attorney in your jurisdiction.

Can the Judge Divide Separate Property?

No. A judge cannot force you to sell separate property for division or otherwise give a portion to the other spouse. What they can do is take the amount of separate property each spouse has into consideration when dividing marital property.

For example, if one spouse has a significant amount of separate property like real estate, cars, etc. when the other spouse has none, the judge may decide to award the latter spouse a larger share of the marital community property in the divorce.

Is Equitable Distribution the Only Way to Divide Marital Property?

No. Whether you live in an equitable distribution or a community property state, you and your spouse have the right to draft your own agreement to divide marital property as you wish. As long as the agreement is written and signed by all parties and fairly negotiated, a judge is likely to honor the divorcing couple’s wishes. These two schemes are the default that judges use to divide property when the sides cannot agree on these issues. 

Any marital property agreement must receive the approval of a divorce judge, but as stated above, unless there are facts to indicate duress or any other unfair pressure against one party, the court is likely to honor that agreement.

Do I Need an Attorney to Help with Marital Property Issues?

While any legal proceeding can be confusing, divorces often add extra emotional stress that can make the situation seem overwhelming. If you are going through a divorce or planning on file for divorce, it is important to seek the help of a family law attorney in your area with experience in handling divorces and marital property issues. 

They can help explain your rights and guide you through the various factors that might affect your outcome. They can advise you on the best way to move forward, whether it is through negotiation or trial. They will be your advocate throughout the entire process and make sure your rights are protected.