When a married couple gets divorced, the property they own together must be divided. If the parties cannot agree on how to divide their shared property, the judge will have to decide. This process of dividing any property the parties obtained during the marriage is called equitable distribution. If you have a substantial amount of property, you will probably want to consult with an attorney about equitable distribution. Equitable distribution also includes dividing responsibility for the parties’ debts. Normally decisions about dividing property and debts cannot be changed after the judgment of divorce.
Property and Debts Subject to Equitable Distribution
Equitable distribution applies only to property the parties got during the marriage. This means from the date of the marriage to the date that a divorce complaint was filed. For example, if the couple lived in a home that the husband already owned prior to the marriage, the wife is entitled only to any increased value of the property since the date of the marriage. She is not entitled to a portion of the entire value of the property.
Marital property can include:
- Real property - a house or land
- Personal property
- Severance pay, inheritances, pensions (even though the money may not be received until a future time) and personal injury awards
- Debts acquired during the marriage.
How the Court Decides about Dividing Property
Generally the judge must do three things:
- Decide what property is marital property.
- Determine the value of each piece of property to be divided.
- Determine how the property will be divided between the parties based on the factors listed below.
In deciding how to divide property and debts, the court must look at a number of factors, including:
- The length of the marriage;
- The age and physical and emotional health of both parties;
- The income or property each party brought to the marriage and their current economic circumstances;
- Any written agreement between the parties concerning property distribution;
- The custodial parent’s need to own or occupy the parties’ home and to use or own other household items;
- Expected future medical or educational costs for a spouse or child; and
- Any other factors the court finds relevant.
- Pensions - If one party has a pension, you will probably want to consult an attorney. To divide a pension, you will need to get a special evaluation. A pension expert must estimate the value of the pension at the time it will be paid and tell the court how to determine the amount of the pension that should go to the other spouse. The expert will prepare a Qualified Domestic Relations Order (QDRO), which will set out how to divide the pension and must be approved by the court. The other spouse should get a portion of the pension based on the number of years the parties were married.
- Personal injury awards - If one party was injured during the marriage, the other party is entitled to a portion of any personal injury award.
- Debts - Generally, if the parties have any debts during the marriage, both parties are responsible. However, it may be possible to prove that a debt belongs to only one party. The other party will have to show that the debt happened after the parties stopped living together, that the debt is for items unrelated to the parties’ relationship or a similar situation. Also, if your spouse is authorized to use your credit card, you will probably want to cancel the authorization.