By Matt Allen
Distribution of property in a divorce is handled differently depending on the state you live in.
In a previous article, we looked at how community property states divide property. Now let’s examine how the majority of states handle property: equitably. (Find out if your state is community property or equitable distribution.)
In states that use an equitable division of assets, all property acquired during the marriage is distributed equitably, or fairly. Not necessarily equally.
First, it is necessary to learn the difference between separate property and marital property since divorce courts do not have the authority to transfer or divide between the parties property that is deemed separate.
Separate property is property owned by one party at the time of the marriage or inherited property or gifts to one party from a third person and maintained as separate property.
Marital property is defined as all jointly owned property and all other property, other than separate property, acquired by either or both of the parties during the marriage and up to the time of the final separation of the parties.
Where marital property and separate property are mixed together or where separate property is increased through the active efforts of either party during the marriage, then such property may be classified as part marital” and part separate property.
In making its equitable distribution awards the courts are not only authorized to make monetary awards to one of the parties, but may also divide or order sold or transfer jointly owned marital property to one of the parties.
The court in making its equitable distribution awards is not required to divide the marital property on an equal basis but rather, in deciding what an equitable division of marital property should be, will consider various factors listed in your state’s Equitable Distribution Statute.
In general, there are several factors that the court looks at when splitting property. These factors may include:
- The economic circumstances of each spouse;
- The contributions of each spouse to the acquisition of marital property, and contributions as a homemaker;
- The value of any non-marital property either spouse has;
- The conduct of the parties during the marriage; and
- Child custody arrangements.