Equitable Distribution of Marital Property after Legal Separation
During divorce there are several terms and conditions that the separating couples have to abide by. After handing over proof of income, outstanding debt along with possessions owned and acquired during the marriage, comes the task of dividing the property. One of the vital elements is the distribution of marital property. In order to distribute the property, the court first determines whether the separating couples have authority over the property or not.
Generally, any form of property acquired by the spouse before marriage is taken as non –marital property. Property acquired by the spouse after marriage is considered as marital property. After determining the marital property, the court takes the initiative to “equitably” divide the property amongst the spouse.
Items Excluded From Marital Property
- Any sort of property acquired by descent, legacy or as gift
- Any property acquired in exchange of property possessed before marriage or even in exchange of property such as gift, descent or legacy
- Any property acquired by the spouse after legal separation
- Any property that is excluded from the valid agreement of the parties
- Any property given to the spouse by the other spouse
Based on the state divorce law, it is the responsibility of the court to “equitably” split the property. Equitably does not mean dividing the property equally. It depends as much on the current physical and mental condition of the spouse.
Determinants of Marital Property Distribution
The contribution of either spouse in decreasing or increasing the value of marital or non-marital property is taken into consideration. Contribution of the spouse as homemaker is also taken into account. Calculation of the value of the property obtained by each spouse is carried out. Estimation of the economic condition of the spouse after division of the property is also made. Whether the spouse will be allowed to live in the home for a certain period of time or whether he or she will be given the custody of the child or children is also discussed.
Apart from these it is also important to check whether there is any sort of rights or obligations of rights arising from the previous marriage. The duration of the current marriage and any sort of postnuptial agreement of both the parties involved are also verified. The capital assets and income of each spouse is also determined along with the tax consequences on the economic circumstances after the property division. Based on the future earning capability of the spouse the division of retirement amount or spouse support is carried out.
Equitable distribution of marital property instead of dividing the property in equal halves takes into account the financial situations of each spouse. The property distribution process is very flexible. It is difficult to make a prior estimation of the property amount, as there are several factors involved in the process of settlement negotiation.
In order to avoid any sort of complication it is important to appoint an experienced solicitor who has proper knowledge about state law and distribution of property.
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