Question:
My state is an “equitable distribution” state with regard to division of assets and debts. So how does equitable distribution work?
In my example, I make significantly more than my wife because she has chosen to work a low-paying, part-time job after quitting a full-time job that paid much more money.
This proves her ability to earn more.
Will the court consider her voluntary underemployment in dividing property?
Answer:
For specific divorce information, you should contact an attorney in your state for assistance. However, I can speak generally to issues involved in your scenario.
In general, a state that recognizes equitable distribution will presume that equal division of the marital property and the marital debt between the parties is appropriate.
This presumption can be rebutted, however, based on a number of factors, including the economic circumstances of each party at the time that the division is to be made.
“Equitable” does not always mean equal, half and half, or down the middle; it is better to consider “equitable” to mean “fair.”
The court will often look to the current earnings, or the earning ability of the parties in deciding how to divide the property and the debt. Hence, the fact that your wife is quite capable of working a job that affords a significantly higher income, and that she voluntarily quit her previous job for her convenience and settled on a lower paying job, should factor into the court’s decision regarding what she can afford, and ultimately, what she can pay.
Most courts will impute a certain income for each party. This can be a higher value than what the person is currently making, if that party’s education, work history, or other factors indicate that the party has a greater income capacity than what he or she currently has.
Please note that I am not able to give you legal advice without having thoroughly reviewed your case, and therefore you should not rely on this information as an establishment of an attorney-client relationship.
If you need detailed information or advice, or wish to take specific action in this matter, you need to contact an attorney immediately for assistance. Cordell & Cordell does represent clients and nationwide.
To schedule an appointment with Tamara Hoffstatter, an attorney in the Troy, Michigan, office of Cordell & Cordell, please contact Cordell & Cordell.
