Equitable Distribution in Divorce Over Simplified

To understand equitable distribution, the division of assets and debts acquired during the marriage, one must first understand the two most important terms used:

Marital property:  all property acquired during the marriage that is not separate property of either spouse.

Separate property:  all property acquired by either spouse prior to the marriage, acquired by inheritance, or gifted to that party alone that was preserved in that person’s name alone or with someone other than the spouse.

All assets are presumed marital, and the party claiming separate property has to prove it.  Do not assume your spouse will admit it.  Most common is “I do not remember.”  So, you’ll have to produce documents, i.e., bank statements, canceled checks, copy of will, etc.  If you did not save any of these documents, and more than 7 years have gone by, you may not be able to produce the proof the law requires.  Financial institutions and lawyers only maintain copies for 7 years.  You need to show where the money came from (a copy of the check you received will do) and show where you deposited the check (the canceled check or bank statement) and what the money was then used for depending on the specifics of your claim. If you cannot prove it and your spouse won’t admit to it, you are out of luck.

The longer the marriage, the more apt it is to be a 50/50 split of all assets.  However, often it is cheaper in the long run to do a 50/50 split than to pay for all the experts and have a trial (depending on the net worth of the marriage involved).  The shorter the marriage, the better chance you have of showing you should get more based on contributions both direct and indirect.  A short term childless marriage of only a few years where no joint returns were filed and no joint accounts exist may result in an equitable distribution based on how much each person put in to the marriage (but once again, will the legal fees justify the fight depends on how much is in the pot at issue).

It is best that if you truly love the person you are marrying that you have a prenuptial agreement to hopefully avoid and minimize any fighting and litigation later if the marriage fails, even if you both have nothing at the time of marriage by spelling out how equitable distribution will take place later.