One of the most difficult areas of family law is equitable distribution. Equitable distribution is the process by which courts attempt to divide property according to what is fair to both parties of terminating marriage. The more assets a couple possesses at the time of divorce, the more difficult the process of equitable distribution becomes. Equitable distribution is a three-step process: (1) categorizing, (2) valuation, and (3) division.
Each item of property is categorized as being either “marital property” or “separate property.” Marital property is eligible for equitable distribution, while separate property is not. Marital property is property that was jointly owned or jointly acquired during the marriage. Any asset that was acquired before the marriage or after dissolution of the marriage is separate property. Frequently, the line between marital and separate property is blurred, so having an attorney who can advocate for your interest in the property is crucial.
The valuation of property during equitable distribution can be very tricky. The value of a couple’s property is measured based on the fair market value of the item at the date of separation, rather than what the item was worth when it was new. Personal property owned by the couple are pieces of property that are moveable, such as cars, televisions, and coffee makers. If the couple owns real estate, a real estate appraiser is usually brought in to determine the value of the real property. Accounts that are owned by the couple are also eligible for equitable distribution. Having a separate bank account does not necessarily shield you from equitable distribution. An attorney can help clear with all aspects of equitable distribution, including this.
The spouses may come to an agreement on their own, without the court, of how they want the property to be divided. However, if a couple is unable to come to an agreement, the court will decide how to divide up the property in a way that is fair, but not necessarily equal. To determine how a property should be fairly divided, the court considers factors such as:
● The length of the marriage;
● Which party has primary custody of the children;
● The financial situation of each party;
● Earning potential of each party;
● Contributions (financial or otherwise) made to the marriage by each party;
● The physical and mental health of each party;
● Any child or spousal support already in place for either spouse;
● Amount of each party’s separate property; and
● Adverse actions by either party (including acts of domestic violence, extramarital affairs, and others).
An attorney will be able to highlight their client’s needs to the court and advocate for their client’s interest in the property. This way, the client will end up with what is truly fair for them rather than what the court thinks is fair for the client.
Overall, the process of equitable distribution is very tedious and regularly becomes a hostile situation for the parties. Hiring an attorney can alleviate much of the stress that accompanies equitable distribution and ensures that the client will get their true fair share of the property.