Who gets the ornaments? Understanding equitable distribution

On Behalf of | Sep 19, 2017 | Blog |

If it looks like a breakup with your spouse is on the horizon, you will likely start to think of how to separate your life from your spouse and move on. It is tempting to think that you can split everything half and half, right down the middle, but soon you will realize that the half and half notion is tricky, if not impossible. Besides, some things you own are yours alone — do you have to share them?

Enter equitable distribution. If you and your soon-to-be ex-spouse can’t come to an agreement independently about property division, then you will have to take the divorce case to court. And unless you live in a community property state, which is not the case in Florida, the judge will divide the marital property using several factors to determine what is fair.

Does equitable distribution apply everywhere?

So, as indicated above, equitable distribution does not apply in all U.S. states. A small number of states use a process known as community property to divide belongings between a divorcing couple. Those states include Arizona, California, Louisiana, Idaho, New Mexico, Nevada, Texas, Washington and Wisconsin. If you reside in one of the listed states, the equitable distribution process does not apply to your divorce.

Marital property vs. separate property

During equitable distribution, you and your attorney will determine which, if any, property belongs solely to you. This type of property is separate property. Separate property includes anything that you received as a gift, anything you bought or owned prior to the marriage, and anything you bought using the funds from the sale of previous separate property or inheritances.

Marital property is anything that you purchased together with your spouse during the marriage. Anything that is not separate property will default to marital property. If you bought something you consider separate property during the marriage, you are required to prove that claim.

Factors the judge will consider

During the divorce proceeding, the judge will consider what is fair and not necessarily what is equal between the two of you. For instance, if one spouse has a lot of separate property, and the other has very little, a judge may grant the person with the lesser amount more of the marital property. A judge will consider also if one of the parties is less likely to be able to earn future income and award them more of the assets. If it shows that they have been irresponsible with shared property, it is possible their share will be smaller.

Most people would agree that it is generally preferable to settle personal matters without the intervention of a third party. But if you have tried this method, and feel that you can’t get a fair shake, you may want to enlist the help of your attorney and undergo the court process of equitable distribution.