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Equitable Property and Debt Distribution

Equitable Distribution (Property and Debt Division)


In dividing a marital estate upon divorce, property will be characterized as either marital or separate. Property acquired by a spouse during the marriage is presumed to be marital property subject to division by the court. This presumption can be rebutted however, by a showing that the property was given to or inherited by a spouse during the marriage. This is true because separate property is defined as property owned by a spouse prior to marriage, given to a spouse during the marriage, or that which was inherited by a spouse. By law, the court cannot divest a party of his or her separate property.

While this explanation seems simple enough, the reality is characterizing assets and liabilities and tracing the funds throughout a marriage can often be a complex task. This is especially true when separate property is maintained with marital funds or parties co-mingle assets, resulting in tracing issues and/or reimbursement claims. If you are involved in a complex property division suit, you will benefit from obtaining an experienced divorce lawyer who can help you characterize your assets, trace your funds, and make your case.

Whether your situation is composed of a high net worth estate involving the valuation of complex assets and business interests or a more modest estate, Our Law Firm is equipped with the knowledge, skill and experience needed to secure results for our clients.

At our Law Firm we begin each suit by acquiring a comprehensive picture of the client’s financial situation and his or her goals, interests and concerns. Whatever the case may be, our lawyer is committed to working with each client to ensure his or her needs and goals are met. He is prepared and ready to negotiate an accurate and fair settlement for each of his clients.

In cases in which settlement proves inappropriate or unworkable, our lawyer will fiercely advocate for his clients at trial. He approaches each case with the understanding that every family is different as is their financial situation. With that in mind, Our Law Firm identifies our clients’ goals early on and stands by their side throughout the divorce process to ensure the best solutions to their property division issues are achieved.

In making an equitable apportionment of marital property and debts, the Family Court must consider the following factors:

  1. The duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties;
  2. Marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage (with exceptions);
  3. The value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;
  4. The income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;
  5. The health, both physical and emotional, of each spouse;
  6. The need of each spouse or either spouse for additional training or education in order to achieve that spouse’s income potential;
  7. The non-marital property of each spouse;
  8. The existence or nonexistence of vested retirement benefits for each or either spouse;
  9. Whether separate maintenance or alimony has been awarded;
  10. The desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;
  11. The tax consequences to each or either party as a result of any particular form of equitable apportionment;
  12. The existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;
  13. Liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;
  14. Child custody arrangements and obligations at the time of the entry of the order; and
  15. Such other relevant factors as the trial court shall expressly enumerate in its order.

The Court’s Order as it affects distribution of marital property shall be a final order not subject to modification except by appeal or remand following proper appeal.

Marital debts must also be divided between the spouses. The Court is not bound to divide the debts in same percentage as it divides the assets. In order to be considered a marital debt and divided accordingly, the Court must consider whether or not the debt was incurred for a marital purpose.


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