Property distribution

 

• 1Divorce law
• 2Divorce legal issues
• 3Marriage legal issues
• 4Prenuptial agreement
• 5Property distribution
  • 5.1Equitable Distribution

[top]Equitable Distribution

A fair and just meting out of property, etc., between interested parties. For example, a constitutional provision requiring an "equitable distribution" of income of a school fund requires distribution thereof to the several districts in proportion to school children enumerated and living in each district. 259 N.W. 168, 169. In matrimonial law, the term refers to statutorily authorized division of property, both real and personal, which was acquired during the marriage. See, e.g., N.J.S.A. 2A:34-23. The court does not necessarily divide the property equally, but attempts to make a fair and just allocation taking into account such factors as length of marriage, ages of the participants, earning capacities, etc. The concept of equitable distribution represents a profound change in matrimonial law by recognizing the essential role played by a non-working spouse (usually the wife) as homemaker and helpmate in the acquisition of family assets. Marriage is therefore viewed as a joint undertaking, similar to a partnership, entitling both partners to a fair share of the assets. 320 A. 2d 496, 501. In contrast, the traditional purpose underlying alimony was to prevent a wife and children from becoming public charges. Keezer, The Law of Marriage and Divorce §560 (3d ed., 1946, reprinted 1991). Absent statutory authority, the courts have no power to transfer property from one spouse to another. 24 Am. Jur. 2d 1054.

What is ‘equitable distribution?’

Most states employ "equitable distribution" in dividing marital (community) property as a result of the dissolution of marriage (divorce). Instead of a strict fifty-fifty split (in which each spouse receives exactly one-half of the marital or separate property), equitable distribution looks at the financial situation that each spouse will be in after the termination of the marriage. While equitable distribution is more flexible, it is harder to predict the actual outcome, since the various factors are subjectively weighed. Factors considered in equitable distribution include:

1. Earning power of the spouses (one might be much greater than the other)

2. Separate property of the spouses (one might be greater in value than the other)

3. One spouse having done all the work to acquire the property

4. The value that one spouse contributed as the home-maker for the family

5. Economic fault of one spouse in wasting and dissipating marital property

6. Duration of the marriage

7. Age and relative health of the spouses

8. The responsibility for providing for children of the marriage

9. Spousal abuse or marital infidelity (to penalize the offending spouse).



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