Posted on: 3 June 2015Share
Forty-one states have "equitable distribution" (EQ) laws for dividing assets in divorce as opposed to the other nine which have community property (marital assets are divided 50-50) laws. To get some understanding of what this could mean for you, read on.
If you live in a state other than: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin, you live in an E.Q. state. This is a more complicated legal set up, but the intention is to for assets to be divided up fairly according to various factors, and a percentage may be assigned to each spouse. This designation is in regards to the monetary value of each asset.
The first thing to be considered will be what assets were brought in to the marriage by each person and how they were used after marriage. If you had an inheritance but you kept the funds completely separate, you may be able to keep it after divorce, but if you put the funds in a joint account or you used the asset together (such as a house or other property), then it becomes a marital asset to be divided.
If you were married for twenty years, much more would be involved in dividing assets than if you were only together six months. If you worked hard to earn living expenses for the two of you so that your spouse could improve their future earning power through education or training, you would have a stake in that. Also, if your spouse brought an asset into the marriage but you improved on it in some way so that its value went up, this would also be something that would be considered.
Factors that would be considered particular to you and your soon-to-be ex personally would include the age, physical, and mental health of each spouse. The court would also look at the earning potential, possible opportunities for training and education, and income and what the financial situation of each person will be once divorce is finalized.
Of course, custody of the children will have a bearing on asset division. If one parent will have primary custody and care-taking responsibilities, they will need enough assets to maintain a satisfactory lifestyle for the children. This may mean the spouse keeps the family home at least until the children reach adulthood, and then it might be sold and the proceeds split.
The responsibility for paying marital debts will also have to be decided on, and the factors mentioned above will be considered in this as well. It may be possible to sell some assets and pay the debts off so no one has to worry about them. If your mate agrees to take on a debt, you will want them to sign a indemnity agreement that stipulates you are no longer responsible for it, so the creditor can't come after you if it doesn't get paid.
Since it is less certain how things may be handled in court in E.Q. states, it would be to your advantage to negotiate and settle things amongst yourselves as much as possible. For help in this situation, you may want to consider the following:
- Mediation (discussing issues and coming to agreements with the help of a mediator),
- Arbitration (having a arbiter decide issues outside of the court setting), or
- Collaborative divorce (using collaborative divorce attorneys to help you work out issues together).
You should consult a family law attorney, such as those found at Ritter & LeClere APC Attorneys At Law, for legal advice to help you make informed choices for your situation.