ABA Family Legal Guide

Family Law

3.4 Separation, Annulment, and Divorce

Property

What is equitable distribution?

Equitable distribution means that a court divides marital property as it thinks is valid, just, and equitable. States applying principles of equitable distribution view marriage as a shared enterprise in which both spouses usually contribute significantly to the acquisition and preservation of property. The division of property could be 50-50, 60-40, 70-30, or even all for one spouse and nothing for the other (although that would be very unusual.) The percentage distribution need not be the same for all property, and the percentage entitlement may vary from one asset to another. Under equitable distribution, courts consider a variety of factors and need not weigh the factors equally. That gives more discretion to the judge and more consideration to the financial situation of both spouses after the divorce. However, it also makes the resolution of property issues less predictable. There are several factors that are considered by states applying principles of equitable distribution:

Nonmarital Property

If one spouse has much more nonmarital property than the other, that could be a basis for giving more marital property to the less wealthy spouse.

Earning Power

If one spouse has more earning power than the other, that could be a basis for giving more marital property to the spouse with less earning power.

Who Earned the Property

That can be a factor favoring the party who worked hard to acquire or maintain the property.

Services as a Homemaker

Courts recognize that keeping a home and raising children is work. In addition, those services often enable the spouse who is working outside the home to earn more money. Thus, services as a homemaker are a factor in favor of the homemaker. Some courts also apply a related concept of considering whether one spouse had impaired her or his earning capacity because of working as a homemaker. That factor would also favor the homemaker-spouse.

Waste and Dissipation

If a spouse wasted money during the marriage, it could count against him or her when it comes time to divide property. This factor is sometimes labeled economic fault, and may be considered even by courts that do not consider other kinds of fault.

Fault

Noneconomic fault, such as spousal abuse or marital infidelity, is considered in a few states, but most states do not consider it relevant to property division.

Duration of marriage

A longer marriage may be a factor in favor of a larger property award to the spouse with less wealth or earning power.

Age and Health of Parties

If one spouse has ill health or is significantly older than the other, that factor could favor a larger award to the sicker or older spouse.