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What Does Equitable Distribution Mean?
The recent Connecticut case of Wendt v. Wendt raised the question of what does equitable mean? You may recall that Lorna Wendt was awarded a settlement worth approximately $20 million from a family fortune worth at least $100 million. Gary Wendt was chief executive of GE Credit Corporation; Mrs. Wendt had been a homemaker and caretaker for the family during the thirty-one year marriage.
In the United States, a few states, influenced by their French or Spanish heritage, have the continental system of community property (50-50), which essentially means that property or assets acquired by either husband or wife during the marriage, except for gifts from third parties, belong equally to the husband or wife. These states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas and Washington. Had the Wendts filed for divorce in these states, Lorna Wendt should have received approximately half the estate or $50 million.
However, the majority of states base their marital law on British common law, including Connecticut, New Jersey, New York and Pennsylvania, and provide for equitable rather than equal distribution. In equitable distribution states, the Court determines a fair and reasonable distribution that may be more than or less than 50% of any asset to either party. According to the New York Times, some legal experts felt that Lorna Wendt would have gotten approximately half the assets if the family fortune were, say $5 million. That is because divorce settlements are often intended to provide non-working spouses with sufficient financial resources to live in their accustomed manner. $20 million was considered equitable based on her lifestyle and set of circumstances.
The equitable distribution law in New Jersey is similar to most equitable distribution states. New Jersey law directs the Court to consider sixteen factors in determining what is an equitable, fair and just division of assets. They are:
Note that it does not matter who holds title to the asset or property acquired during the marriage. Individual Retirement Accounts, Pension Plans, 401K's acquired during the marriage are considered marital assets. Property acquired "in contemplation of marriage" may also be considered martial assets. The Court may not only order equitable distribution of marital property but also of marital liabilities.
The only exceptions to martial assets are the following , if kept separate:
The question often posed by litigants is "does marital misconduct, or fault influence the way judges divide assets?" In a ruling case, Chalmers v. Chalmers, 320 A.2nd 478 (NJ 1974), the New Jersey Supreme Court decided that "fault may be merely a manifestation of a sick marriage. The concept of fault is not relevant to such distribution." While fault is not listed in the list of sixteen factors the courts look at in deciding division of assets, it could conceivably fall in that gray area of factor #16 -- "Any other factors that the court may deem relevant"
So where does that leave most of us working folks? It is my experience (not a legal opinion), except for short-term marriages, most divorces result in somewhere between a 40% to 60% split of marital assets. As marriages exceed the 20-year mark, they are considered long-term marriages, and more often, result in a 50-50 split of marital assets.
What is clear is that there are no easy answer to the question "What Does Equitable Distribution Mean?" That does not mean I advocate for community property - even though it would appear easier to interpret. Community property, especially in short-term marriages, can result in windfalls that are explicitly unfair to the higher earner. So, we are left with a complicated definition of fairness that keeps lawyers and judges employed. However, I have found in mediation, that when equipped with sufficient information regarding the New Jersey factors that the courts may look at, most couples are able to develop what they consider a fair split of assets that may not make either party happy, but in the end they consider equitable.
In New Jersey, a separation agreement is any legal document signed by both spouses outlining the terms of the separation. Subjects resolved in a separation agreement can include child support, child custody, debt allocation and asset distribution. Notarizing the document ensures its validity, since there is no such case-type in New Jersey that provides for a "legal separation." Spouses wanting child support during the separation period, however, must file a claim with the New Jersey probation department.
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