Home | Equitable Distribution

Once a court has determined that grounds have been satisfied for purposes of rendering a judgment of divorce, an annulment, the declaration of the nullity of a marriage, or in a proceeding to obtain a distribution of marital property following a foreign judgment of divorce, a court will go on to determine the respective rights and provide for the disposition of the marital property, a process known as “equitable distribution”.

The term "marital property" means all property acquired by either or both spouses during the marriage regardless of the form in which title is held. Marital property does not include separate property. “Separate property” means

• property acquired before marriage or property acquired by bequest, devise, descent, or gift from a party other than the spouse;
• compensation for personal injuries;
• property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;
• property described as separate property by written agreement of the parties.

Property acquired during the marriage is presumed to be marital property so the burden of proof will lie on the party seeking to establish his or her separate property.

Equitable distribution means that the marital property is distributed equitably between the parties, considering the circumstances of the case and of the respective parties. In determining an equitable disposition of the marital property, a court will many factors, including but limited to:

• the income and property of each party at the time of marriage, and at the time of the commencement of the action;
• the duration of the marriage and the age and health of both parties;
• the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
• the loss of inheritance and pension rights upon dissolution of the marriage;
• any award of maintenance;
• any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
• the liquid or non-liquid character of all marital property;
• the probable future financial circumstances of each party;
• the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
• the tax consequences to each party;
• the wasteful dissipation of assets by either spouse;
• any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.