When people are headed for divorce, their foremost concerns revolve around child custody and property division. If you file for divorce, you will want to know which system your state uses to divide marital assets: equitable distribution or community property.
Only nine states, including California and Nevada use the community property model, while the rest of the nation uses the "equitable distribution" method to divide marital assets. In community property states, divorcing spouses are entitled to half of the marital assets acquired during the marriage, but that is not the case in equitable distribution states.
In an equitable distribution state, if the spouses cannot agree on how to divide their marital property, a judge will decide based on what is "equitable" or otherwise fair given the couple's circumstances.
What factors does a judge consider?
Each married couple's situation is unique, therefore, judges divide marital property on a case-by-case basis. When a judge divides a couple's marital property, first he or she will take these factors into account:
- The length of the marriage
- In some states, marital misconduct
- The age and health of each spouse
- A spouse's contributions as a homemaker
- A spouse's contribution to the other spouse's education
- The income and assets of each spouse
- Each spouse's separate property
- Dissipation of marital assets (wasteful spending) by either spouse
- Each spouse's earning capacity
Before a judge decides on property division, first he or she must determine what is marital and what is separate property. Marital property is all property acquired during the marriage regardless of who owned it, while separate property is: property acquired before the marriage, personal injury awards, gifts and inheritances. Separate property is not subject to division.
Once the judge knows what is separate and what is marital, the judge divides the couple's marital property. Regardless of the amount of separate property, the judge considers the above factors and then decides on a division that is fair considering the couple's circumstances.
If you are seeking a divorce, learn the property division laws in your state by speaking with a local family law attorney!