Equitable Distribution

If you’re facing a divorce, the matter of your property rights is paramount. In D.C., Maryland, and Virginia, courts are required to distribute the marital assets equitably in a divorce. Importantly, equitably does not mean evenly; instead, it means in a way that is fair in light of all the relevant circumstances.

Courts have significant discretion in determining how to distribute marital property. As a result, if you are facing a divorce where the division of your property will be contested, you should reach out for the skilled legal guidance of an experienced divorce attorney as soon as you can.

How Equitable Distribution Works

Equitable distribution refers to a fair division of the assets and debts that you and your spouse acquired over the course of your marriage. Some of the primary factors the court takes into account regarding this fair division include the following:

  • Each spouse’s earning potential relative to the other’s
  • The financial and nonfinancial contributions each spouse made to the family over the course of the marriage
  • The length of the marriage
  • The tax implications of the proposed property division
  • Anything the court considers relevant to the case at hand

Ultimately, the court is attempting to strike a fair balance in the context of the divorce circumstances involved. States that employ community property laws, on the other hand, divide marital assets – as offset by marital debt – equally between both spouses.

Equitable Distribution vs. Equal Distribution

Equitable distribution takes a more individualized approach to property division than equal distribution does by taking the unique circumstances involved into consideration. In order to strike a fair balance, the court can implement whatever division it sees fit. With equal distribution, however, the court divides the married couple’s assets evenly between both spouses.

There are pros and cons to both approaches. For example, in some highly unique situations, one spouse is entitled to a larger percentage of the assets than the other, and equitable distribution allows for this brand of discretion. With equal distribution, on the other hand, divorcing spouses know exactly what to expect.

Protecting Your Assets During Divorce

An important tool for protecting your assets during divorce is the prenuptial or postnuptial agreement. These are contracts that require financial disclosure and that the spouses enter together – either prior to marriage with a prenuptial agreement or during the marriage with a postnuptial agreement.

A valid prenup or postnup that addresses the division of marital property guides how the couple’s assets and debts will be divided – putting the guesswork associated with equitable distribution aside. The enforceability of these agreements – when they’re created in coordination with practiced divorce attorneys – generally isn’t an issue.

The Divorce Terms Addressed

In your prenuptial or postnuptial agreement, you can address the financial terms of your divorce.

The Division of Your Marital Property and Debts

Over the course of your marriage, you and your spouse will likely acquire assets, and they will all be identified as marital assets. It doesn’t matter who made the purchase, whose name is attached, or who uses the asset – the fact that it was purchased while you were married makes it marital. The same is true of the debts you acquire.

Separate assets refer to those properties you owned prior to marriage, but any intermingling with marital assets can jeopardize their separate nature. With a prenuptial or postnuptial agreement, you can address the matter of your separate assets directly, which can afford you significant protection.  

Alimony

Alimony, or spousal maintenance, does not apply in every divorce situation, and it is never guaranteed. Alimony is ordered when divorce leaves the exes facing a financial imbalance. If one spouse is left without the financial means to support themself at or near the same standard of living achieved during the marriage – and the other has the ability to provide support – alimony may be ordered. A prenuptial or postnuptial agreement can resolve this financial concern ahead of time, and this known element can provide both spouses with considerable peace of mind.

The matter of child support can only be addressed in your prenuptial or postnuptial agreement if the financial terms included exceed those required by the state. Finally, child custody arrangements are always guided by the best interests of the children at the time they’re ordered, which means they can’t be resolved prior to divorce.

Additional Strategies for Protecting Assets

Because asset protection in relation to divorce is key, it’s important to explore all the strategies available to you. One of the most important is keeping your separate assets separate over the course of your marriage. The properties that you own prior to marriage are considered separate assets, but any intermingling with your marital assets during your marriage can blur the dividing line between them.

Exempt Property in Equitable Distribution

Exempt property refers to those assets that are not subject to equitable distribution. Separate property that you owned prior to marriage is a prime example. Any separate assets that you kept separate over the course of your marriage will remain yours alone and will not be addressed in the fair division of your marital property.

Other examples of exempt property include:

  • Any gifts given to you in your name alone while you were married
  • Any inheritances you received in your name alone while you were married
  • Any properties you purchased using only separate assets while you were married  

It’s important to note that an asset may not be entirely separate or marital. For example, if you came into your marriage with a retirement account, the value up to that point will be considered marital. Any increase in the account’s value over the course of your marriage, however, will need to be addressed in the equitable division of your marital assets.   

Consult a Divorce Attorney about Your Options

The dedicated divorce attorneys at Bourdon & Tortolero – serving clients throughout Virginia, Maryland, and the DC metropolitan area – are committed to fiercely advocating for your financial rights in the equitable distribution of your marital assets. The circumstances of your divorce are unique, and we take a personalized approach with every case we take on. To learn more about what our knowledgeable legal team can do to help you, please don’t hesitate to contact or call us at 703-646-8390 today.

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