While ten states in the U.S. have community property laws that require courts to divide property equally among the parties, the remaining states have equitable distribution laws that allow the courts more leeway in ensuring that there is a fair, or equitable, distribution of that property. In all states, if the parties can reach their own agreement concerning how to divide marital property, their divorce will often be less expensive and completed more quickly. However, when necessary, lawyers, mediators, and courts can help those couples reach an agreement as well.
Equitable Distribution Guidelines
Equitable distribution is not an even, or 50-50, distribution of property. It is an attempt to divide properly fairly among the parties in a divorce. Generally, a court is assigned the task of finally coming to an agreement when the parties cannot do so themselves. The judge considers many factors in devising an agreement for an equitable division of property. Not all courts in all states consider exactly the same factors, so it is important for the parties to consult and attorney or research the laws and tendencies in their state to learn the standards there.
The general categories that a court considers when making an equitable division of property can include the following:
- Age and health of the parties
- Earning capacity of the spouses
- Separate property of the spouses
- Duration of the marriage
- The childcare responsibilities of the parties
- Standard of living of the family before the divorce
- The investment of one party in the education or training of the other
- The contribution of an at-home spouse in the marriage
- The economic circumstances of the parties
- Other relevant factors, such as the economic fault of either party in wasting marital property
- Any spousal, child, or substance abuse of either party
- The fault of either party in breaking up the marriage
The judge often factors in the separate property of spouses when attempting to ensure an equitable settlement for both spouses as well. Debts are also divided equitably among the parties in equitable distribution states. That can also be a difficult process, especially in terms of major assets and debts.
Getting Legal Help with an Equitable Division of Property
While the ideal solution to the division of property is for the spouses to reach an agreement themselves, that is not always possible. In those cases, a judge may have to make the final decision. However, when the parties are represented by experienced divorce attorneys, they have an advocate that can make a thorough and effective presentation of the assets, income, and expenses of their client, helping to ensure a truly equitable division of property.