The standard for a contested property division is an equitable distribution. Equitable distribution begins with the assumption that the distribution is equal but aims toward a fair and just division. The court considers relevant factors, including the impact of the marriage on each spouse and how the divorce will affect them.
The only assets subject to the equitable distribution are those considered to be marital property. Therefore, the court must first classify and distinguish the properties before they can split them fairly between spouses.
What is marital property?
Marital property is every property or asset either spouse purchased or acquired during the marriage, except those a spouse received by gift or inheritance. These include:
- Assets acquired during the marriage
- Any nonmarital asset that increased in value due to spousal efforts
- Interspousal gifts given or received during the marriage
- Real and personal property jointly owned as tenants by the entireties
- Some retirement benefits
A common misconception is that a spouse can maintain sole ownership of an asset and protect it from a divorce by purchasing it with their own income and only putting their name on the title. However, if the purchase happened within the duration of the marriage, the item would fall under the marital property category regardless of whose name appears on the title.
The significance of identifying your marital assets
One spouse can try to overprice or underprice an asset value to sway the equitable distribution toward their favor. They may also try to conceal marital assets. These actions can prevent the other spouse from receiving their fair share. Both spouses should identify all their marital assets and obtain all the supporting financial records they will present to the court. They can ensure that the distribution is equitable by taking a proactive approach and staying on top of things.