If you happen to live in an equitable distribution state (which turns out to be MOST states), it’s important to know that when it comes to splitting your belongings, the court aims for fairness, not necessarily an exact 50/50 split. They consider a list of state factors and apply them to your unique situation before making any decisions. But guess what? You have options! You can create a prenuptial agreement, which lets you make your own rules for dividing your stuff.
That means you can actually have a say and customize how your assets are divided, overriding what the state’s laws dictate. Let’s delve in deeper below:
Which states are equitable distribution?
Most states follow equitable distribution laws:
- District of Columbia,
- New Hampshire,
- New Jersey,
- New York,
- North Carolina,
- North Dakota,
- Rhode Island,
- South Carolina,
- South Dakota,
- West Virginia, and
What does equitable distribution mean?
So, you’re going through a divorce, and one of the big concerns on your mind is how your shared assets and debts will be divided. That’s where equitable distribution comes into play. It’s the legal principle that aims to divide everything fairly and justly between you and your soon-to-be ex-spouse.
Now, you might be thinking, what does “equitable” really mean? Well, it’s all about fairness rather than a strict 50/50 split. The court takes into account the unique circumstances of your marriage and the contributions both of you have made financially.
Equitable distribution focuses on dividing what’s known as marital property (more on this term below). This includes things like your house, cars, bank accounts, investments, and even those sentimental belongings you’ve accumulated over the years. On the other hand, non-marital property, like assets you had before the marriage or received as gifts or inheritance, usually stays with the respective owner. However, in some circumstances non-marital property can become marital property and vice versa.
When it comes to deciding how things should be split, the court considers various factors laid out by each individual state. For example, they may look at the financial contributions each of you made during the marriage, your future needs, and even the length of your marriage. The goal is to ensure that both parties can move forward without being left at a significant disadvantage.
It’s worth noting that equitable distribution isn’t a one-size-fits-all approach. It allows the court some flexibility to tailor the division to your unique situation. It may not be a perfect 50/50 split; it could be 60/40, 70/30, or any other combination that the court sees fit. The court takes into account what’s fair and reasonable for both of you.
Remember, the process involves carefully evaluating your assets and debts. The court may consider expert opinions and financial assessments to determine their value. They want to make sure they have a clear picture of what needs to be divided.
At the end of the day, equitable distribution aims to achieve an “equitable” outcome that considers your individual circumstances. It’s about making sure you both have a reasonable share of the marital property, relative to your specific situation, allowing you to move forward and rebuild your lives.
If you don’t like the idea of your property potentially being split up unevenly, that’s where a prenup comes in. A prenup can make sure to set the rules for your property division and actually override the equitable distribution laws set out in your state!
How does a prenup come into play in an equitable distribution state?
So, let’s talk about prenups and how they fit into the picture when it comes to equitable distribution states. Don’t worry, it’s not as complicated as it sounds. Here’s an easy-to-follow breakdown:
Setting Your Own Rules
A prenup is a personal contract that couples create before tying the knot. It gives you the power to set your own rules for how your assets and debts will be divided if you ever decide to part ways. It’s like having a say in your own personalized asset-sharing plan. Your prenup actually overrides the equitable distribution property division rules of your state.
Clarity and Peace of Mind
With a prenup, you can bring clarity and peace of mind to your financial future. It helps avoid potential conflicts and uncertainties by clearly stating each person’s rights and responsibilities when it comes to dividing property, assets, and debts. No more second-guessing or surprises down the road.
Safeguarding What’s Yours
One awesome thing about prenups is that they can protect your separate property. This includes assets you had before the marriage or received as gifts or inheritance. With a prenup in place, you can ensure that these treasures stay with you if the unfortunate happens and you decide to part ways.
Personalized Asset Arrangements
Prenuptial agreements allow you to personalize how your marital property gets divvied up. You can have a say in how certain assets or debts are allocated. Maybe you have a sentimental attachment to that vintage car or want to ensure a fair distribution of your business assets. A prenup lets you customize it according to your unique situation and priorities, and not have to rely on the default (equitable distribution) laws of your state.
Terms to understand in equitable distribution states
Below is a breakdown of some of the key terms you should understand if you are living in an equitable distribution state:
When something is categorized as marital property, it means that it is subject to being split up in the divorce. When you write in your prenup that something should be considered “marital property” you are essentially saying “I give the court the ability to divide my property according to the state’s equitable distribution rules.”
When something is categorized as non-marital property (sometimes also called “Separate Property”), it means that it is NOT subject to division by a court. It means it is the property of the owner and their spouse has no access to it in a divorce.
Assets are things you own that have value. Think of your home, car, savings accounts, retirement funds, and even that vintage comic book collection you’ve been holding on to. Equitable distribution involves deciding who gets what when it comes to these valuable items.
While most states follow equitable distribution, a few stick to the concept of community property. Community property means that everything acquired during the marriage is considered equally owned by both of you, and it should be divided equally if you get a divorce. That means 50/50 with few exceptions. Remember, this is different from equitable distribution because it’s usually split 50/50 without many other considerations. On the other hand, equitable distribution considers the situation as a whole to split up the property.
When deciding how to divide everything, the court takes various factors into consideration. Each state lays out its own set of factors to look at when making this determination. The factors that are used in Illinois may be completely different than another state. Typically, states require courts to look at things like how long you’ve been married, the money each of you contributed, your future needs, your ability to earn money, your health, and other important details.
The Bottom Line
If you live in an equitable distribution state, the most important thing to understand is that the court is going to split your stuff EQUITABLY, not necessarily 50/50. A court will look at the totality of your circumstances and make the call on how to split your stuff. If you don’t like this, we have good news: you can get a prenup and make your OWN rules for how to split your stuff. Yes, you can actually override the equitable distribution laws of your state.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]