One of the most confusing and emotionally charged aspects of divorce is dividing property. Many people assume everything will be split 50/50, but in most cases, that’s not how it works. Most states follow the principle of equitable distribution, which doesn’t necessarily mean equal; it means fair.
So, what does “equitable” actually mean in a legal sense? And how do courts decide who gets what?
In this article, our friends from Vayman & Teitelbaum, P.C. break down the basics of marital vs. separate property, how equitable distribution works, and what factors can affect who gets what in a divorce.
Marital Property Vs. Separate Property
Before any property can be divided, the court first determines whether it’s marital or separate.
Marital Property
Marital property generally includes anything acquired by either spouse during the marriage, such as:
- Income
- Real estate
- Cars
- Retirement accounts
- Businesses or investments
- Debts (yes, those get divided too)
Even if an asset is in one spouse’s name, if it was earned or acquired during the marriage, it’s usually considered marital property.
Separate Property
Separate property includes assets or debts that:
- Were owned before the marriage
- Were inherited by one spouse
- Were received as a gift by one spouse (not from the other spouse)
- Are protected by a prenuptial or postnuptial agreement
However, separate property can become marital if it’s mixed with shared assets. For example, if you inherited money but deposited it into a joint account, it may lose its separate status.
What Does “Equitable” Really Mean?
In equitable distribution states, courts divide marital property in a way that is fair, but not always equal. The goal is to reach a division that reflects the financial and personal circumstances of both spouses.
Factors that courts typically consider include:
- Each spouse’s income and earning capacity
- Contributions to the marriage, including homemaking and childrearing
- Length of the marriage
- Age and health of each spouse
- Who will have primary custody of the children?
- Any spousal support obligations
- Misconduct that affected finances (e.g., reckless spending or hiding assets)
One example of how the courts make an equitable agreement is, if one spouse stayed home to care for the children while the other built a career, the court may award more assets to the non-working spouse to compensate for the economic impact of the divorce.
Debts Are Divided Too
Equitable division also applies to debts, not just assets. If a couple has shared credit cards, loans, or mortgages, the court will decide how to fairly assign responsibility. That’s why tracking your financial records is essential during a divorce.
Can You Decide On Property Division Without Going To Court?
Yes! Many couples can negotiate a property settlement without needing to go to court. This is usually faster, less expensive, and less stressful than having a judge make the decision. You can work with:
- Mediators to reach an agreement
- Collaborative divorce attorneys
- Or draft your own settlement with legal guidance.
- Even in equitable distribution states, courts generally approve agreements as long as they’re fair and voluntary.
How To Protect Your Interests
If you’re going through a divorce or preparing for one, here are some steps to protect your rights during property division:
Know What You Own
Make a complete list of assets and debts. Don’t forget pensions, business interests, and valuable personal items.
Separate What’s Yours
If you received gifts or inheritance, keep documentation and don’t commingle them with marital accounts.
Be Transparent
Hiding assets can backfire and result in penalties. Courts reward honesty—and punish concealment.
Get Professional Advice
Work with a family lawyer who understands your state’s laws and can help you negotiate or litigate fairly.
In divorce, equitable doesn’t always mean 50/50; it means fair and just, based on your unique situation. By understanding the difference between marital and separate property and knowing how courts approach fairness, you can make smarter decisions about your financial future.