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The Divorce Encyclopedia
Equal Division

Term Definition Equal Division - at best, an ideal.
Application in Divorce Some divorcing parties have mistaken ideas about equal division of a marital estate.

Among community property states, only California, Louisiana and New Mexico always divide equally. Three other community property states -- Idaho, Nevada, and Wisconsin -- begin with presumption that it should be equal, and then entertain arguments to the contrary from either spouse. Equal division does not mean that each asset is split in half; instead the court makes certain that the total of the assets is divided in half.

In a similar fashion, among equitable distribution states, eight states -- Arkansas, Florida, Indiana, New Hampshire, North Carolina, Ohio, West Virginia, and Wisconsin -- begin with a presumption that assets should be divided equally. In these jurisdictions, the courts entertain arguments from both spouses about why property should not be divided equally.

Some jurisdictions begin property settlement negotiations with equality as a starting point and then move on to an equitable settlement; a smaller group look upon equality as an end point. Even within this, equitable rarely means equal.

Equitable distribution does not mean equal; it means fair, which in the words of one veteran Pennsylvania lawyer "is probably one that both parties are not completely happy about, but both can live with." (A judge sharpened the logic of this saying a "fair" settlement makes both parties unhappy.) For example, sometimes a court gives the marital home to the wife and mother even when the award gives her more than half the marital estate.

One of the hardest concepts for some divorcing couples to understand and accept is that equitable property division almost always does not mean equal. V irtually all courts in all equitable distribution jurisdictions have held that an equitable distribution does not mean equal one.

See also Equitable Division of Property; Community Property; Kitchen Sink States; Dual Classification States.

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