Equitable distribution is the process by which the courts decide how the marital property is to be divided between the parties. The theory behind equitable distribution is the recognition of the “partnership” aspect of the marital relationship. The distribution applies to all assets acquired during the marriage, including but not limited to real estate; personal, bank and brokerage accounts; retirement assets and business entities.
- The duration of the marriage;
- The age and physical and emotional health of the parties;
- The income or property brought to the marriage by each party;
- The standard of living established during the marriage;
- Any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution;
- The economic circumstances of each party at the time the division of property becomes effective;
- The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage;
- The contribution by each party to the education, training or earning power of the other;
- The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker;
- The tax consequences of the proposed distribution to each party
- The present value of the property;
- The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects;
- The debts and liabilities of the parties;
- The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children;
- The extent to which a party deferred achieving their career goals.
When making its determination based on these factors, the court must make specific findings of fact based on the three step process mentioned above, i.e., (a) which assets are eligible for distribution, (b) their value and (c) the manner in which it should be distributed.
Generally, property will qualify for distribution when it is the result of an effort or activity by either spouse during the marriage. The assets to be distributed are usually identified, for valuation purposes, as of the date that the Complaint of Divorce is filed.
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