What is equitable distribution?

If your divorce case goes to court in an equitable distribution state, a judge hears evidence and reviews many factors to determine how to divide your assets and debts — it’s not always 50/50. Over 40 states follow equitable distribution laws. And there are ways to get the most out of it.

What is equitable distribution?

Equitable distribution, also known as the equitable division of property, is a legal principle centered around how the property you’ve acquired during a marriage should be split up in a divorce. Instead of a 50/50 separation, courts weigh many factors when dividing your assets and debts.

Equitable distribution states

Over 40 states are equitable distribution states — also known as common law states — that recognize the equitable distribution of marital property. The one exception is Alaska, which gives spouses the option to follow equitable distribution or community property rules.

How is property divided?

Most divorcing couples try to come to an agreement about how to divvy up their property outside of court. You can use a mediator to help facilitate negotiations or hash it out over the kitchen table.

If you can’t agree and end up in court, a judge uses equitable distribution to guide property distribution. The court decision is final and out of your control. Going to court for equitable distribution is generally a last resort.

Nine factors taken into consideration with equitable distribution

Here are nine variables courts consider when determining what to give each spouse:

• Duration of the marriage
• Who has primary custody of the children
• Amount each spouse contributed to the combined marital property
• Each spouse’s expenses
• Each spouse’s earning potential
• Financial needs and liabilities of each spouse — both now and down the line
• Contributions to the family unit that didn’t earn money, such as raising the children or taking care of the home
• Age and health of each spouse
• Negative actions by each spouse, such as extramarital affairs, domestic violence or gambling debts

Premarital vs. marital property

Premarital property is yours to keep, whereas you and your spouse share marital property. Knowing the difference will help you determine which property to include in your divorce agreement.

Equitable distribution vs. community property: What’s the difference?

Community property laws dictate that both spouses equally own all marital property. So in a divorce, you’ll split everything right down the middle.

On the other hand, equitable distribution divides the property fairly, depending on each spouse’s situation. There is no set rule governing what each spouse receives. For example, courts may split your marital property 40/60 or 70/30.

Community property states

The nine community property states include:

How to get the most out of equitable distribution

If your divorce case goes to court, a judge splits your property according to equitable distribution laws. Here are a few tips to get the most out of equitable distribution:

• Do your homework. Get all the documentation to show which assets are separate property, such as the title of a car that you bought before marriage. You’ll also want to show how much you’ve financially contributed to the marital property and education and earning power of your spouse.
• Premarital or prenuptial agreements. If you have a prenup agreement, you’ll want to show the judge this legal contract, which spells out who gets what in a divorce.
• Evidence of “egregious” fault. Courts take into account extreme cases of fault when making equitable distribution decisions. For example, some states require the courts to consider whether domestic violence has occurred before awarding a settlement.
• Evidence of financial wrongdoing. You may be awarded a higher amount if you can prove that your spouse’s behavior impacted your shared finances or if your spouse has been hiding marital property.

Get help completing your divorce papers

Use an online divorce service to help fill out your divorce forms.

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Bottom line

If you and your spouse can’t agree on how to divide your assets and debts, consider going to mediation to avoid court. If you still can’t agree and file for divorce in an equitable distribution state, a judge divides everything according to a variety of factors like your earning power, how much you contributed to your marital property and who has custody of your children.

Frequently asked questions

• If my spouse and I can work out how we should divide our property, do we need to go to court?

  No. You generally don’t need to go to court if you and your spouse can work out a settlement agreement on your own. But if you can only agree on dividing some things, a court can step in to distribute the undivided property.

• What happens to an asset that has just my name on the title?

  If an asset has your name only, a court may consider it as evidence of separate property. However, you’ll likely need to make a case that the asset is not marital property, such as proof that you acquired it before marriage.

• Does equitable distribution mean equal distribution?

  No. Equitable distribution means that property is divided fairly, which may not be an equal 50/50 division. Instead, a judge determines how much each spouse gets based on several factors.