Division of all joint and martial property in a divorce action can be a complicated and highly contested process. Generally speaking marital property is considered to be all property acquired during the marriage.
The division of property in a divorce or separation actions is premised on assigning to each party his or her sole and separate property first and categorizing what remains as marital property.
Sole and Separate property is defined as property:
- Acquired prior to the marriage, and
- Sole and separate property acquired during the marriage such as gift, bequest, etc.
- Distinguishable from the material property.
- Generally listed under a valid prenuptial agreement as sole and separate property.
EQUITABLE DISTRIBUTION OF PROPERTY
There are those jurisdictions that apply the community property legal criteria to division of property. That is, assets and property acquired during the marriage will be equally distributed 50/50 among that parties.
District of Columbia is not one of those jurisdictions.
The DC legal paradigm is the “equitable distribution of property”model.
That is, the court will distribute all property and debt accumulated during the marriage, in short marital property, that has not been addressed in a valid antenuptial or postnuptial agreement or a decree of legal separation — regardless of whether held as sole or joint tenants — in a manner that is:
- Just, and
Thus all property acquired after marriage is presumed to be marital property unless specifically addressed and detailed in a prenuptial agreement. Even if the title is held under an individual spouse, if acquired after marriage, presumption would be that such is a marital property.
Refer to our Washington DC Prenuptial Agreement Lawyer page for more information on this topic. Well drafted, coherent and thoughtful agreement can significantly reduce the need for litigation over assets and distribution of property. Our DC Divorce Lawyer specializes in drafting agreements that are effective, enforceable and comprehensive and set out guidelines for property division upon divorce.
The specific factors the court considers and balances in such equitable distribution of property are:
1) The length of marriage
- The longer the marriage and the accumulation of marital property the more complex the analysis and the requirement for establishing an equitable legal and accounting method to distribute property.
2) Age, health, occupation, income, employment of each of the parties
- All significant factors in making a just and reasonable distribution of property. The court is generally more sympathetic toward a party that does not have a substantial earning capacity and has devoted time and efforts toward marriage instead of pursing a lucrative career.
3) Child custody and support awards play a significant role in the court’s view
- The parent/party who has been awarded full physical custody of small children may have a higher financial burden in the future and depending on the child support award may require a more equitable distribution of assets to balance the financial liability.
4) Alimony and other legal financial obligation
- Alimony, and child support from a prior marriage can provide a financial boost and thus must be considered overall in distributing all property.
5) The future earning capacity
- The earning capacity of each party can also dictate what is equitable. A party with a higher earning capacity or potential would require less distribution from the marital property. The court’s goal in the equitable distribution process is balance the financial standings of the parties.
6) Each party’s contribution toward the family
- The court will seek to balance each party’s contribution through the distribution of assets. The stay home parent who devoted time and resources in raising the children may require a higher level of distribution to balance the equities among parties.
7) Other financial contributions
- Contributions to the education of one’s spouse in order to enhance the earning potential. In such cases again the court will seek to balance equities through distribution and the calculation may be more mathematical in such cases.
8) Fluctuations in income due to marriage
- Each parties debasement or increase in income as a result of the marriage would be considered by the court. The party who financially suffers to compensate in the other area of marriage may seek restitution during the equitable distribution of marital assets.
9) Depreciable assets
- Acquisition, preservation, and appreciation or dissipation of all depreciable assets or property and each party’s role and contribution thereto. Increase or decrease of marital property attributed to either party would be considered by the court as a factor in distribution formula.
10) Tax consequences of the distributable assets relevant to each party
- Tax liabilities and windfalls would significantly alter the value of all assets and the court will factor in tax consequences in determining what is equitable.
11) Blame for divorce
- The reasons for filing of the divorce action and circumstances thereof. Although DC is no fault jurisdiction, in equity all are considered and even though this factor should be given a minimal legal deference — in realty, it is generally given a measurable weight depending on the circumstances.
It is important to recognize that the equitable distribution of property is not an exact science or a mathematical equation. The court in essence applied all remedies equitable to parties in distributing property. So the Court may consider other factors relevant such as alimony distribution, child support or other financial considerations.
Refer to our DC Divorce Lawyer page for information on other categories of Washington DC Divorce.