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The Divorce Encyclopedia
Children and Equitable Distribution

Term Definition Children and Equitable Distribution - a wide range of issues.
Application in Divorce At the end of a marriage, a wide range of issues relating to children may affect the equitable distribution of property apart from the calculation of periodic child support.

A spouse’s gifts to children may reduce the size of the marital estate since they reduce the size of property subject to distribution. In divorce actions, when courts even hear claims that spouses dissipated assets during the happier times of the marriage, gifts to children, particularly when the are larger than previous years, may be classed as dissipation, especially if they are made near the time of the marital breakup. Such gifts in anticipation of divorce may send up red flags to a court seeking to equitably divide and distribute property.

A parent’s right to claim his or her dependent children as an income tax deduction is not property. It has no present value for purposes of dividing a marital estate. Children are not property "and should be included on in the trial court’s determination of issues regarding support and custody and not marital property."

The child-related contribution of a nonworking working spouse may play a substantial role in the acquisition and enlargement of the marital estate. When one parent, usually the mother, assumes a disproportionate share of what have been termed "parenting activities" on top of homemaking, these contributions may be considered in the division of property. A wife who assumed sole responsibility for the "couple’s troubled son" during a seven-year separation was entitled to a share in the appreciation of their marital assets during that time, a New York court ruled in 1991.

In some jurisdictions, when one spouse expends substantial sums for children during a separation, that expenditure may be considered in the property division. For example, a husband who voluntarily paid for all of his children’s college expenses and his estranged wife’s living expenses during their separation received 60 percent of a close corporation in a 1989 Illinois case.

Courts may make these considerations, it should be reiterated, are apart from any periodic child support.

A custodial spouse may argue that the economic needs of the child may warrant a larger share of the marital pie, even if by so doing, the noncustodial spouse may receive less than an equal share of the marital estate. This may happen when the only significant asset a divorcing couple have is the marital home, and the custodial spouse receives the use and occupancy of it for a time. Many states recognize that a use and occupancy award preserves the home for custodial parent with minor children.

A few states expressly prohibit consideration of child support in the allocation of property distribution, but the weight of future custody and child support responsibilities are frequently raised in the property distribution to the custodial parent. Some jurisdictions consider the distribution of the marital estate when "economic circumstances" require it. In some cases. courts have held, it may be better to award one spouse property rather than imposing high support payments that cannot be counted upon.

Even after the property settlement, assorted issues related to children may come to the fore. Property settlement payments, alimony and child support are each different. A spouse delinquent in property settlement payments may not catch up by overpaying child support.

See Dissipation of Assets.

See also Kitchen Sink States; Equitable Distribution; Community Property; Separate Property.

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