If you are in the process of divorce or considering the possibility, you may wonder if the assets and property you hold in common with your spouse will be divided evenly between the two of you. More often than not, the answer is no. Most states have laws that divide marital property in a divorce according to a principle of equitable distribution.
How Does Equitable Distribution Work?
Inequitable distribution, rather than a 50-50 split of the marital property between each spouse, the court looks at the financial situation of each spouse and tries to divide assets according to a principle of fairness that will put each spouse on a more or less equal footing financially.
Which States Do Not Have Equitable Distribution Laws?
Of the 50 states, only nine do not divide marital property according to the principle of equitable distribution: Wisconsin, Nevada, Louisiana, New Mexico, Idaho, Texas, Arizona, and Washington. In these states, common law applies, which means that marital property is divided evenly between divorcing spouses with no consideration given to individual circumstances.
When Do Equitable Distribution Laws Apply?
If you and your spouse are able to negotiate your own property division agreement, and you both agree that it is fair, there is no need to concern yourselves with the principle of equitable distribution. If, on the other hand, you and your spouse are unable to come to a property division agreement, the court will intervene and apply the laws of equitable distribution to ensure a fair split.
Does the Law Consider Domestic Violence, Addiction, or Adultery as Factors?
Generally speaking, no. Usually, factors such as these are only considered if they had a negative impact on your shared finances. For example, if your spouse ran up a huge debt due to a gambling addiction or committed fraud by hiding marital assets, the court would be more likely to take those factors into consideration when determining equitable distribution.
What Factors Does the Law Take Into Consideration?
There are many factors that go into the determination of equitable distribution. Here are a few examples of the factors that the court may take into consideration as they relate to each spouse:
- Existing pre- or postnuptial agreements
- Future financial needs and earning potential
- Contributions to marital property
- Age and overall health condition
- Liquidity of marital property
In some ways, a 50-50 split may be easier, but it is unlikely to yield much satisfaction in either spouse. The fact that most states have adopted the principle of equitable distribution speaks to how much fairer it is. If you have questions regarding property division, attorneys can provide personalized answers based on the particulars of your specific case. Contact family lawyers in Bloomington, Illinois to arrange a consultation.
Thanks to Pioletti, Pioletti & Nichols for their insight into family law and equitable distribution.