In a divorce, states divide property one of two ways. They use either equitable distribution of assets or equal distribution. The words are very similar and are often confused.
The key to understanding the difference in distribution models lies in the words themselves. “Equal” essentially means that everyone will be given the same amount or opportunity. “Equitable,” in modern parlance, is a way of dividing things more fairly.
One of the simplest ways to envision the difference between equitable and equal is a staircase. It is open for anyone to use. This makes it equal. What if, however, you use a wheelchair? Is it fair to expect you to use the staircase? Many would say it is not, which is why we also have ramps for the disabled. This is equity.
Similarly, assets can be distributed either “equally” or “equitably” when a marriage ends. In a divorce, equal distribution divides assets 50/50, and equitable distribution strives to divide assets “fairly.”
Property in a Marriage
Before looking at the differences in distribution models, it is important to understand which property can be divided. Definitions can become legally complicated, and there are slight variations from state to state. Generally, however, assets in a marriage can be categorized in one of two ways: marital property or separate property.
Separate property belongs only to you. If your marriage ends, you have legal claim to all of your separate property. Not many belongings fall into this category. First, any property you had before the marriage is yours. Next, you have sole claim to any inheritance you earned during the marriage. That money (or property) was left specifically to you. Similarly, you have individual possession of gifts given to you from persons outside of the marriage. Damages that you received in a civil trial are also yours alone. Any time you sell or trade your separate property, you have a claim to whatever you received in the transaction.
Speaking generally, any property acquired during the marriage is marital property. It doesn’t matter if you bought something alone or if everyone in the house considers that item “yours.” Imagine you have a treasured stamp collection that you’ve built up since childhood. Technically, any new stamps you buy while married are marital assets, regardless of your spouse’s involvement in the collection.
Equal Property Division
The technical term for this model is “community property division.” The specifics can be complicated, but generally, community property division splits marital assets between both spouses, 50/50. With physical property that cannot be divided, such as a home, the court may award a dollar amount to the person leaving the home. This keeps the split equal. Many see this as an outdated system, and only nine states still use this model.
Interestingly, most community property states still give judges discretion when dividing property. Although the state has an equal division model, judges can still make decisions that they deem fair. Even when a state is rigid about the 50/50 split, courts can still make equitable decisions in the form of child support and spousal support. Essentially, an equal property division can still look much like an equitable division once the divorce is finalized.
Equitable Property Division
Equitable division attempts to divide the property in a way that is fair, not necessarily equal. Property is given to the person who needs it most or “deserves” it most. When one spouse, for example, is a stay-at-home parent, the court may award them a larger share of the assets. This applies to physical assets as well.
Let’s say Brian is the breadwinner in the home, and Sarah stays at home with the children. The kids want a dog, and Brian pays a local breeder for a puppy. After that, he has little to do with the animal. He doesn’t walk it or feed it. He makes the kids clean up after the dog, train the dog, bathe it, etc. During the divorce, the parents agree to let the children stay with the mother full-time. In a situation like this, Sarah would probably be given the dog, since she and the kids have been its primary caretaker.
Courts can make similar decisions about houses, cars, or any other property. Brian may pay for all the upkeep of a car, but Sarah is its primary user. Sarah is a meticulous manager and cleaner of the home, but Brian pays all the bills. Accordingly, a judge could view Sarah as being more entitled to the home and car than Brian.
Equitable Division in New York
New York is an equitable property division state. For this reason, you need a skilled lawyer in a divorce. Judges can make sweeping decisions about property that you believe is rightfully yours. You need an attorney who can present your argument in court and show the judge why you are entitled to certain assets.
If you have questions or concerns about your property in a divorce, reach out for a free consultation. You can fill out a contact form here, or you can call (914) 752-5333.