Equitable Distribution: Is the Pie Truly Divided Equally?

Divorce is a sensitive process that can be emotionally overwhelming. Amidst the myriad of legal complexities and conflicting feelings, you may find yourself wondering about the division of assets and liabilities between you and your spouse.

This article will detail how exactly equitable distribution works, and how assets and liabilities could be divided between the divorcing couple.  

What is Equitable Distribution?

Equitable distribution, also known as ‘division of property’ is a proposition in the sphere of divorce law that attempts to conduct the way that ‘property’—the assets and liabilities—accrued during a marriage should be divided.

How Is Property Classified in Equitable Distribution?

‘Property’ is a rather broadly-defining term, but in this context of divorce law and equitable distribution, and of course dependant on the laws of the state one finds themself in, is often characterized as such:

Community Property

Community property is also known as ‘marital property’ and encompasses all tangible, real property (such as real estate, vehicles, furniture, artwork, and so forth) and even personal property procured by either or both spouses during the marriage (this can be bank accounts, pensions, stocks, etcetera). All property acquired prior to the date of separation is most likely to be observed as community property. 

Separate Property

Separate property includes all property, real and personal, acquired before the marriage itself, or in some states, the property received post-separation/divorce. However, separate property can even extend to gifts or inheritances received during the marriage.

Concerning gifts exchanged between spouses themselves, according to the state’s laws, said gifts—and any accompanying, subsequent income or appreciation—may or may not be classified as separate property. This can sometimes boil down to if the gifting spouse’s intention was for the receiving spouse and only the receiving spouse to utilize the gift in question—such as in the example of a car.

Divisible Property

Divisible property pertains to property that has undergone any appreciation or diminution after the date of separation. This may also include property received after separation but before distribution, that was acquired initially by both parties during the marriage before the date of separation.

Equitable Distribution: Where Fair Isn’t Always Equal

“Of course, equitable distribution laws will differ according to state, and thus it is recommended that one gets involved with an experienced attorney who is knowledgeable of any existing idiosyncrasies,” says attorney Allen Russell of Atlanta Divorce Law Group.

It is important first to recognize the difference between fair and equal as the two concepts, though sometimes used synonymously, can at times be mutually exclusive.

Perhaps an analogy to clear any potentially existing uncertainties?

Equal is an infant, a strong young man, and an elderly woman, each carrying their own thirty-pound bundle of firewood up a mountain. Fair, on the other hand, is the strong young man, the potentially most capable of the trio in this specific scenario, with his own bundle appropriate to how much weight he can carry; the infant doing whatever it is they do best at that age—playing, laughing, flushing things down the toilet when you aren’t looking; and the elderly woman, resting in her old age after a life of hard work.

Hopefully, we can now understand how being equal isn’t always fair to the parties involved. And similarly to the way things can be divided between a couple during a divorce, splitting things straight down the middle, so to speak, would not always be the fairest decision.

Of course, this can at times devolve—or evolve, depending on your position in the situation—into very complicated, lengthy back-and-forth discussions. And even more discouragingly, the law in some states pertaining to equitable distribution can outrightly disregard what is fair entirely. 

Key Takeaways 

Divorce can be an emotional rollercoaster, and muddying the waters even more, is the issue of who gets what when both parties go their separate ways. 

And given that laws regarding equitable distribution can vary from state to state, it is best that you remain informed at all times, and even get in contact with an attorney who can help you determine the best outcome.