Equitable Distribution: It Does Not Mean Equal

Very often in a divorce, spouses struggle to understand the idea of what is called “equitable distribution” of the marital estate because they find out that equitable does not mean equal or even half. And that, depending on which side of the equation a person is, does not seem “fair.”

Equitable distribution of the marital estate, which is the system used in 41 of the 50 states and the District of Columbia for dividing property acquired by spouses during their marriage, means the court has the power to divide and distribute marital property “based on equity and fairness” and are not bound by which party held title to the asset during the marriage. Some states say all property held by the couple is marital, but most equitable distribution states classify property as either marital or separate, and distribute the marital property equitably.

In practical application, equitable distribution very often results in the family home going to the custodial parent, who is often the stay-at-home mother with small children and other offsetting assets going to the noncustodial parent who is often the father. Judges make this division of property even when the division produces a dollar value that is not exactly equal and may indeed by short in favor of the mother. In the eyes of the judge this division is equitable to both parents and the children.

Put in the simplest way, equitable distribution — which is also called equitable assignment — means that a judge tries to be fair, and sometimes that means that when he cuts the loaf in half the pieces will not be equal in size.

The laws on equitable distribution differ from one jurisdiction to the other. In most equitable distribution states, judges must consider certain mandatory factors, but courts afford judges considerable latitude in the interpretation of these factors as part of what is called judicial discretion. The mandatory factors normally include 1) the length of marriage, 2) the age, health, occupation of the parties, 3) station in life and lifestyle of the spouses, 4) liabilities and needs, 5) tangible and intangible contributions of the parties to the marriage, 6) assets and liabilities, sources and amounts of income, 7) behavior of the parties during the marriage, and 8 ) vocational skills and employability.

Even when one spouse owns a great amount of separate property in his or her own right, equitable distribution does not limit his or her claims to the marital estate. Equitable distribution works from an assumption that the marriage is an economic unit and that what the spouse acquired during the marriage is subject to distribution — regardless of need.

Comments are closed.