The division of marital assets is a hotly debated and emotionally charged issue. The division of the property includes a host of complicated factors from pension funds and employment benefits, to pre-marital property to potential payments of alimony.
Since deciding what will be yours and what will be his or hers when getting a divorce can seem muddied and unclear, it is best to first understand the rational and philosophy behind the law of equitable distribution. The theory recognizes marriage as an economic partnership which means the courts realize that each party expended efforts to acquire what is now considered part of the marital estate. Therefore, each spouse is entitled to a share of the marital property. How much each takes away from the marriage is dependent upon a number of factors which include the following:
- How long the marriage lasts;
- The age and health of each person;
- Income of property of each person brought to the marriage;
- The standard of living created while married;
- All written agreements made by each person during the marriage or prior to concerning distribution of property;
- Financial position of each party when division of property takes effect;
- Earning ability and income of each person, including education, skill sets, additional training, work experience, time away from the job market if applicable, custody issues, and resources needed to have an individual support him/herself at an established standard of living;
- Extent to which one spouse contributed to the earning ability, education, or training of the other;
- Each person's contribution to acquiring, selling, appreciating or depreciating of property held jointly as a result of marriage, including home-based contribution;
- Tax-related consequences due to redistribution;
- Present value of property of the marriage;
- The need for the residence and material items to stay with the parent with custody;
- Debt and/or liabilities shared by both persons;
- Trust fund creation for educational or medical costs for spouse or children;
- Did one or both defer achievement of career goals;
- Other factors as relevant.
Equitable distribution is not an equal division of marital assets: the court cannot automatically divide assets 50/50. Equitable distribution, what each person contributed to the marriage, is more than simply monetary contributions to the marriage. The court evaluates all of the components of a marriage, both financial and non-financial. Raising children, domestic activities, and emotional support are essential to maintaining the marriage, as are economic factors. Under equitable distribution, each case is examined on its own merits. The trial judge considers the factors mentioned earlier to help determine how much or how many of the assets should be distributed to each party. In terms of determining what assets are subject to equitable distribution, the judge looks at property "acquired during the marriage." The judge must, in each case, study all of the particular circumstances of the parties. Then, after evaluating each spouse's situation, the judgment must determine how to best distribute the marital property.