DIVORCE, CUSTODY & FAMILY LAW

Summary

What Is Equitable Division? Equitable division is the process by which the court divides all assets and debts acquired during the marriage in a fair way. It does not matter whose name an asset or debt is in — if it was acquired during the marriage, it is marital property and subject to division. In most cases, even hotly contested high-asset cases, the split is close to 50/50. In some instances it may be 60/40 or 55/45 based on the contributions or fault of one party, but even division is the norm.

Identifying Marital vs. Non-Marital Property. Non-marital property includes assets acquired before the marriage, inheritances, and gifts from family members. These are generally excluded from division. However, several actions can convert non-marital property into marital property. Commingling occurs when you deposit non-marital funds into a joint account or use them to purchase marital property like a home. Transmutation occurs when a premarital asset is retitled into both spouses' names. Taking out a joint mortgage on premarital property, where the other spouse's credit is used and their name is added to the debt, can also convert the underlying asset. If you can clearly trace what the non-marital funds were spent on or exchanged for, you may be able to preserve their non-marital character — but this becomes an issue to litigate.

Special Equity. Even when property remains premarital, the other spouse may be entitled to "special equity" if they contributed to its increased value during the marriage. If you live in a premarital home and add a deck, fix the driveway, or build an addition — whether with your own labor or with marital funds — the other spouse is likely entitled to their fair share of the appreciated value. Similarly, if marital funds (income earned during the marriage) are used to pay down the mortgage on a premarital property, the other spouse has a credible claim to their share of the equity reduction.

Dissipation. When a spouse wrongfully spends marital assets — on gambling, an addiction, or an affair — the court can account for that waste and make the other spouse whole by awarding them more than half of what remains.

Marital Debt. All debt acquired during the marriage is divided as part of equitable distribution. Exceptions include debt incurred for a wrongful purpose (gambling, an affair) and, in most cases, student loan debt used to pursue a career credential, which usually follows the spouse who took out the loan.

Protecting Yourself in the Division. When one spouse takes over an asset with attached debt — such as a home with a mortgage or a vehicle with a car note — the agreement must be written to protect the other spouse. The court can order the spouse keeping the home to refinance and remove the other spouse's name, typically within six to twelve months, with a provision that the home be sold if they cannot. Insurance requirements should be included for vehicles. A court order can direct someone to make payments, but it cannot prevent a bank from pursuing collections or damaging the other spouse's credit if payments are missed. A well-drafted agreement reduces these risks by including clear enforcement mechanisms and contingency provisions.

Contempt of Court. If the other party fails to follow the court's order, you can bring a contempt action. Willful contempt of court can result in sanctions. The key is having an order that is written in a way that is clearly enforceable — so that violations are straightforward to prove and remedies are available without extensive additional litigation.