If the parties cannot reach an agreement about the equitable division and distribution of the marital estate and alimony, a judge does it for them, and he considers what are termed mandatory factors, and in some jurisdictions, discretionary factors.
In the 41 jurisdictions that use equitable distribution, the wording and interpretation of mandatory factors vary, but in general these considerations include:
1. the length of the marriage,
2. the age, health, and occupation of the parties,
3. lifestyle of the parties,
4. contribution of the parties,
5. liabilities and needs,
6. behavior of the parties during the marriage, and
Discretionary factors vary from state to state. In some courts, a spouse’s economic conduct may be a discretionary factor. For example, a spouse who dissipates marital property in the casinos or on high living with a girl friend may find the judge considering his behavior when it comes to dividing the marital pie.
Equitable division, it should be remembered, does not mean each spouse gets half. It means a judge tries to be fair, and one Pennsylvania judge said fair often means that both spouses are unhappy.