While there are many important issues to be worked out during divorce, one of the most important to consider is the division of property, both debts and assets. There are two ways that these can be distributed – through equitable distribution and community property. Most states, however, use equitable distribution.
Despite its name, equitable distribution doesn’t mean equal. Rather, it means fair distribution of properties, other assets, and debts. In order to divide property and debts, there are many factors that are considered, including both the marital properties and separate properties. Although separate properties will not be divided between the two spouses, it often does have a significant effect on how the marital properties will be distributed. Other factors that could affect the distribution are:
- Age, physical, emotional, mental health, and length of marriage
- Income and earning potential of each spouse
- Present value of any marital property, as well as the income and property contributed by each spouse during the marriage
- Standard of living created during the whole marriage
- Possible economic situation of each spouse once the divorce becomes final
- Conjugal debts and liabilities, along with the ability of each spouse to pay for them
- Possible tax repercussions of each spouse
- The need for the custodial parent to keep the marital home along with its household effects
- The assistance or aid of one spouse to the education, training, or earning power of the other spouse
- Contribution of each spouse as a homemaker, as well as their contribution in obtaining any marital property
There are also times where the court can penalize spouses for their wasteful use of marital property, whether it be during the marriage or after the separation. Any abuse or infidelity is also something the court often considers.
Equitable distribution is only done in court; therefore, it is typically used only when both spouses have not agreed on the distribution of their properties. However, distribution of properties can be talked over by the spouses themselves, or with their respective lawyers, resolving these issues without taking them to court.