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Equitable distribution is the statutory (legal) means of dividing marital assets and debts upon divorce. In the United States there are three ways that marital property can be divided when the couple divorces. First, if both parties can come to an agreement they will typically be allowed to determine the distribution of their assets and debts (by way of prenuptial agreement or divorce settlement). Second, some states have community property laws which state that, upon divorce, all marital property shall be divided 50/50.

Some states have equitable distribution laws which divide marital property based on equitable distribution principles. In these states, a number of factors will be considered by the courts to determine how to divide marital property and debts upon divorce. The underlying ideology behind equitable distribution is that by evaluating these specific marital factors, the courts are better able to divide property fairly between the two parties.

Equitable distribution may result in a 50/50 split of marital property, or it may favor one party who raises the children, has less earning potential, has given up income opportunities for the sake of their spouse, and more. Equitable distribution applies to all property, income, debts, and other assets that were accrued by either party during the course of the marriage. Separate property is typically secure from equitable distribution in most, but not, all cases. A prenuptial agreement signed before marriage is one way to protect these assets from becoming subject to equitable distribution. In other cases, the party seeking immunity for separate property will have to establish cause for immunity.

While each equitable distribution state has statutory discretion over which factors are considered and which are not, the following is a list of matters that are typically considered when determining equitable distribution. Equitable distribution can be determined based on: the duration of the marriage; the age, physical and emotional health of each party; the income and earning potential of each party; what property each party brought to the marriage; the standard of living that was established during the marriage; the value of child care, homemaking, and paid work; the investment one party made into the education, training, or earning power of the other; each party's current economic circumstances, and other factors deemed relevant by the state family court.

There are currently forty-one states with equitable distribution laws. The family courts in these states have the final discretion over the division of marital property and debts upon divorce. While equitable distribution is more flexible than community property statutes, it is also less predictable. If you are going through a divorce in an equitable distribution state, it is in your best interest to speak with a qualified and experienced family law attorney who can protect and maximize your legal interests in a divorce.

An experienced attorney knows your state's equitable distribution laws and other applicable statutes and how to present the strongest and most favorable case possible.

If you would like to learn more about equitable distribution, please contact us to speak with a qualified family law attorney in your area who can help.

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