Equal or Equitable Split in Divorce Court?

divorce lawyerThe divorce process can be overwhelming, especially if you listen to what others say. Since it is an emotional process, every person’s experience is vastly different. The range can run from amicable to downright contentious. It helps to understand a few basics about what to expect before embarking on such a difficult process. As an attorney from a divorce law firm can explain, one element that may prove a bone of contention among couples is how property is divided. Learn the most common ways courts decide who gets what in divorce.

Equal Shares

Each state has its own divorce laws on the books, ultimately determining how a couple should split up property. Some states subscribe to an equal or 50/50 split. If the couple cannot reach a favorable agreement, the judge will divide everything equally between them.

Equitable Distribution

Some people may not believe splitting property equally is exactly fair since doing so may hurt one spouse more than another. Equitable distribution is becoming more the norm in state courts and is the law in almost half. This process results in the judge deciding how to divide property fairly. Several factors are considered during the process, such as:

  • Who carried the bulk of child-rearing
  • Who contributed financially
  • Who sacrificed a career
  • Who has a higher earning potential

The judge may also consider which spouse will have better financial footing after a divorce either due to alimony, separate property or career trajectory.

Excluded Property

Property is generally thought to be anything owned by the parties, either in financial or physical form. During a divorce, the couple must give an accurate accounting of the property jointly owned, and property brought into the marriage by each. When deciding how to divide property, most courts will exclude anything owned previous to the marriage that still exists in one spouse’s name. The court will also not consider any inheritance as co-owned or marital property.


While assets, such as cash, retirement accounts and the family home are considered a plus, any debt is a negative. However, courts typically divide marital debt between the parties in the same way they do assets.

Negotiation and compromise between spouses is the ideal way to settle all divorce issues. However, property and debt can become some of the hardest issues to resolve without a judge’s order. A divorce lawyer can help educate a client on how a court may decide issues and guide them to more beneficial methods and outcomes. Look for someone in the state where the divorce will occur for assistance.