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When it comes to dividing assets in a divorce, what is considered equitable?

by | Oct 6, 2021 | Divorce

When you hear your attorney tell you that the judge will divide marital “equitably” in your divorce, you may assume this means equally. It does not.

Equitable, in family court, means “fair.” Judges who preside over property division issues make decisions on a case-by-case basis after considering the needs of each party and the facts of the case. If you plan to get divorced in an equitable distribution state — like New Jersey — it is important that you understand how a judge will determine how assets and debts will be divided.

Community property versus equitable distribution

Of the 50 states, nine abide by community property distribution rules. In these states, such as Texas and California, a judge will divide a divorcing couple’s marital property 50/50, regardless of who contributed what to the union, who has more separate assets and who assumes fault for the dissolution.

States that follow equitable distribution laws take a much more delicate approach to property division. In these states, judges divide property based on what would be most fair to both parties. To come up with a fair solution, the judge will consider the couple’s circumstances, including each party’s education and employment and even responsibility for caretaking of children.

Factors that affect equitable distribution

So what factors, exactly, will the judge consider when dividing property in your case? The factors are listed in New Jersey statute N.J.S.A. 2A:34-23.1:

  • How long you have been married
  • Your ages and health
  • Whether either of you have assets you brought into the marriage
  • The marital lifestyle
  • Incomes and financial circumstances for each of you at the time of the divorce
  • Sacrifices you may have made for the marriage to support your spouse’s career or care for children
  • What you each contributed to the asset
  • Tax implications of the distribution
  • The asset’s value
  • Debts you will each be responsible for after the divorce
  • Current and future needs of the children and parent primarily caring for children

The statute also has a general provision that allows a judge to consider other facts specific to the family that are relevant to deciding what is fair.

To better understand equitable distribution laws and how it may impact your divorce, work with an experienced lawyer. The right lawyer can identify which factors are most relevant in your situation and advocate for an outcome in your best interests.