A marriage is a partnership. During the partnership, assets and liabilities are mutually acquired; therefore, if the partnership ends, both assets and debts need to be fairly shared. This is known as Equitable Distribution.
The course of your marriage is defined as from the date you are married until the day you file for divorce. As with any area of the law, there may be an exception for the time period when the parties were separated.
How are Assets Distributed?
If left up to the court, the court takes all assets and debts, and divides them equally between the parties. Again, as with any area of the law, there are exceptions whereby the court can unequally divide these assets and debts. Some of these are:
- The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
- The economic circumstances of the parties.
- The duration of the marriage.
- Any interruption of personal careers or educational opportunities of either party.
- The contribution of one spouse to the personal career or educational opportunity of the other spouse.
- The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
- The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
- The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
- The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
- Any other factors necessary to do equity and justice between the parties.
It’s helpful for a client to obtain statements for all assets and debts that show the balances on the date of separation and of filing divorce, as well as getting values of any assets (such as real property) as close to the date of filing as possible.
Divorce is tragic and during this time there’s typically animosity. This often makes everything seem unfair and fuels selfish behavior – leading to squabbling. Often the stronger person wins and the weaker party in unfairly treated. Which is why it’s important for an impartial court to look at all aspects of the relationship and ensure it’s fair to all parties involved.