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Division of marital property is called “equitable distribution”. It is a very detailed area of law designed to guide the court in distributing the property of a married couple when a divorce is sought. Marital property is generally property acquired during the marriage or property that is titled jointly. However, there are exceptions. For example, when property is acquired during a marriage, but only non-marital money was used for its purchase. Sometimes this is the most significant issue in the case. Perhaps the marriage is a long-term marriage and after the years, various kinds of property have been acquired. The court must determine which property is marital, and therefore subject to distribution, and then decide who gets what. If there is only one house, it is not so easy to give half to each party. If there are minor children, for reasons of stability of living arrangements, the judge is required to take that into account. On the other hand, if it is a “single asset” case in which the house is the only asset, it is unfair to distribute it to only one spouse or even grant the use of the house to only one spouse.
Many other issues can arise that deal with pensions, cars, bank and brokerage accounts, and even furniture and jewelry. Generally, the court tries to make the distribution equal, but it is not required to do so. There are legally justifiable reasons to ask for an unequal distribution and your lawyer needs to know these details in order to prosecute or defend such a claim. Some assets, such as 401(k) or other retirement assets can only be distributed by a special order called a “Qualified Domestic Relations Order.” Failure to properly prepare such an order or properly consider these types of accounts could result in a client being deprived of property that should be distributed to him or her.
Other issues might be present. For example, if one party owns a business, whether it is a lawn service, a hardware store or a medical practice, the complexity of the situation is greatly increased. Generally, such a business cannot be divided, so the party that operates the business will have it distributed to him or her while the other party will receive other assets of equal value. This requires careful valuation of the business. If business partners are involved, additional problems are created. This is where a lawyer who only “dabbles” in family law can run into difficulty, rendering improper advice to a divorce client. You should only seek the advice of an experienced family law attorney to assist you with such complex situations.