Division of Property Flashcards
Equitable Distribution
Requires FAIR distribution of all marital property
IN: Rebuttable presumption that equal division of marital property is just and reasonable, and a court that does not divide property equally must state its reasons
Marital Property: In General
ALL PROPERTY OWNED BY EITHER SPOUSE is subject to equitable distribution
“One Pot Approach”
Exception: Property acquired by a spouse AFTER SEPARATION
Valuation Date of Marital Property
May be any time between date of the petition for dissolution/separation and date of final hearing
Up to Court
Factors in the Equitable Distribution of Marital Property
(1) Earnings and Earning potential of both spouses;
(2) Contribution of each spouse to acquisition of property;
(3) Economic circumstances of each spouse at time of divorce;
(4) Value of property acquired prior to the marriage, through gift or inheritance;
(5) Dissipation of marital assets; or
(6) Custody of any minor children
Specific Types of Marital Property: Professional Licenses and Degrees
NOT a distributable property interest
May contribute to increased earning capacity
Specific Types of Marital Property: Retirement/Pension Benefits
Marital property if acquired during the marriage
Specific Types of Marital Property: Disability Insurance Benefits
Marital property to extent that spouse paid the premiums during marriage
Specific Types of Marital Property: Personal Injury Claim Proceeds
Compensation for losses incurred during the marriage ARE marital property
Compensation for future lost earnings ARE NOT
Specific Types of Marital Property: Personal Goodwill
NOT marital property
Specific Types of Marital Property: Future Interests in Property
NOT distributable as marital property
Specific Types of Marital Property: Social Security Benefits
NOT distributable as marital property
Specific Types of Marital Property: Debts
Debts incurred during and prior to the marriage are considered marital debt
Court has discretion to assign responsibility for marital debt to the spouse who incurred it
Tax Consequences of Equitable Distribution
Property transferred between divorcing spouses is NOT TAXED
Only becomes taxable when sold
Modification of Property Division Award
NOT modifiable based on future circumstances
