Equitable Distribution
The legal process through which divorcing parties’ assets and debts are divided is called “Equitable Distribution.” This division of assets and debts can be achieved in different ways, but essentially will be accomplished by either an agreement between the parties or by an order of the court. Distribution of assets and debts can only be addressed after an exchange of information between the parties confirming the nature and values of assets and debts called “discovery.” Some parties choose to use a mediator or arbitrator to divide their marital assets and debts in order to save on legal fees in a less adversarial environment. However, where mediation or arbitration is not preferred and/or where direct communications between counsel are unproductive, the court offers the process of Equitable Distribution to achieve a final resolution. If requested, a Hearing Officer will be appointed to your case and a series of conferences will be scheduled to address the exchange of information between parties and to see if an agreement can be reached. If no agreement is reached, parties can have their matter scheduled for a trial in which the court will hear evidence and testimony before deciding how assets and debts will be distributed via court order.
The process described above is called “equitable” distribution and does not necessarily mean “equal” distribution. A marital estate is not merely divided equally between the parties, but instead is distributed in a manner that takes into account each of the party’s individual circumstances. There are several factors the court considers in Equitable Distribution including, but not limited to, the parties’ health, ages, incomes, whether one party has custody of minor children, and each party’s respective separate/nonmarital estates. Application of the relevant factors can result in a distribution where one party receives more than 50% of the marital estate and the other party receives less than 50%.
Marital vs. Nonmarital Property
Absent a prenuptial or postnuptial agreement that states otherwise, marital property is generally defined as the assets (including increase in value) and debt acquired from the date of marriage to the date of separation regardless of how assets are titled. Marital property also includes any increase in value of non-marital assets. Although there are exceptions based on your particular circumstances, non-marital property typically includes assets acquired prior to the marriage, acquired post separation and/or acquired by gift or by inheritance. The attorneys at Potts, Shoemaker & Grossman have experience compiling the information, reviewing documents provided in discovery and in the analysis of assets and debts at issue. In turn, they can anticipate which assets will be marital vs. nonmarital and provide you the information necessary to understand what assets are in your marital estate for distribution.
Property Settlement Agreements
The written document which sets forth the details of a final resolution by agreement for the division of assets and debts between divorcing parties is called a Property Settlement Agreement. They will skillfully navigate your case through the equitable distribution process and will work with you to negotiate and draft a Property Settlement Agreement that protects your interests.
Alimony
Alimony refers to payments made from one spouse to another spouse after a decree in divorce is entered. This is addressed in conjunction with equitable distribution and effectuated through an agreement by the parties or an order of the court after a trial. The amount and duration of alimony that is appropriate for each case is based on several factors and takes in consideration what the parties will be receiving in equitable distribution. These factors include, but are not limited to, the length of the marriage, the ages of the parties, their health, their incomes, one party’s need for additional payments to meet their reasonable needs and the other party’s ability to make payments to assist the party in meeting his/her reasonable needs.