EQUITABLE DISTRIBUTION STATES Clause Samples

EQUITABLE DISTRIBUTION STATES. With the exception of Mississippi, all other states follow the tradition of "equitable distribution". This means that the court, if you cannot reach agreement on your own, "equitably divides" the marital property based on the income, expenses, and responsibility of the parties. The court normally considers the length of the marriage; the age, health, and conduct of the parties; and their occupations, skills, and employment potential. Equitable division does not mean equal division and seldom is property equally divided. As such, if a debt is created or a piece of property is purchased and controlled primarily by only one party, it may be considered to only be under the rights or obligations of that party. In these situations, these assets and debts are sometimes handled like personal property - not marital. The court will order an approximately equal division of the assets and liabilities when: • It was a long marriage; • The spouses had nearly equal wealth before the marriage; • Both spouses have approximately equal earning ability; and • There are no minor children. The court will award more property (and fewer debts) to the spouse who has: • Less earning ability; • Less financial contribution to the marriage if the marriage was short in duration; • Poor health or other adverse circumstances; or • Custody of minor children. Without a settlement agreement, the court determines what qualifies as marital property, sets a value to it, and then makes a monetary award to adjust for any imbalance in terms of one party having title to less than an equitable portion of the property. In an "equitable distribution" state, all property (no matter how it is titled), acquired during the marriage by either party is "marital property." Marital property also includes any interest in real property held by the parties as tenants by the entirety, unless the real property is excluded by a valid agreement. Marital property does not include property acquired before the marriage or through gifts or inheritances to either spouse, property that is excluded by valid agreement, or that is directly traceable to any of these sources. Be aware, however, that there are situations where "non-marital" property can become marital or partially-marital property. You should consult an attorney if you have any questions about the status of your property.