Equitable Division Of Property 101

Equitable Division 101
Equitable Division 101

A client comes into our office who has been married to her spouse for five years. He’s been cheating since they got back from the honeymoon, but she stayed nonetheless. She wants alimony for his adultery. She hasn’t worked since they met. She also wants the house that he just inherited from his father, and the check from his pending personal injury litigation where he spilt piping hot coffee on his big toe leaving him devastated that he can no longer wear anything but flip flops. She wants insurance for the next 20 years, and she wants his retirement. She’s angry and she’s ready to take him to the cleaners! After hearing all this, we are obligated to inform her that she’s not taking him to the cleaner’s, but more like taking him to the laundry room to use a spot remover pen.

The thing is, people are under the misconstrued thought process that once they are married they are getting half of everything their spouse has and will ever own. When they get a divorce a few months or years later, they’re shocked when they hear of the term “equitable division.” Equitable division basically means that you will get an equitable share of the MARITAL property not his or her sole personal separate property. Equitable division is not what is fair, but what the trial court (or the equity court) deems is a proper division of assets. The law isn’t exactly consistent, because it isn’t so much statutory (governed by statutes) as it is ruled by case law. This means that the law is ever changing based off individual cases. However, the courts take into account a few considerations that we, as divorce lawyers, learn and use to predict how the court may or may not rule. Some of these elements are extremely more important than others and determine whether some facts are even considered. These factors include:

  1. Is it marital property or separate property?
  2. Was the separate property comingled (did the parties use the property in the marriage)?
  3. How long have the parties been married?
  4. What did each spouse contribute to the marriage (nominal & through actions)?
  5. What debts do the parties have together?
  6. Was their misconduct on either side of the marriage?
  7. Is there a prenuptial agreement?
  8. What are the ages of the parties?
  9. What is each parties earning potential?

In our client’s case (above) the property she’s wanting was mainly his separate property that he either inherited or is going to receive because of the big toe incident. Don’t get me wrong, he should owe her a lot for the pain and heartache she’s gone through all these years, but the court can’t really put a nominal value on heartbreak. As for her not working for five years and wanting alimony, she hasn’t really become accustomed to this new standard of living yet. She’s been doing it for five years and thus, she can go back to work and start over again. When looking into awards of alimony the court wants to know if the spouse has become accustomed to that standard of living which normally takes more than ten years.  If they had been married for thirty years, that’d be a whole other story!  In the big scheme of life, she’s only been in this marriage a short time.

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