What Factors will a Judge Consider in Dividing Property?

When a court makes a distribution of assets pursuant to an equitable distribution claim, property is divided so there is an equal division of the marital property. However, if a judge determines that an in kind, equal distribution is not equitable, a judge may then divide marital property equitably.

There is a strong presumption that an equal distribution is equitable and an equal distribution between both parties is mandatory unless a judge makes findings of facts, while considering all the statutory factors, that an equal distribution would be inequitable.

The following are the factors that a court must consider:

1. The income of either party, the property of either party, and liabilities of each party at the time the division of the property will become effective.
2. Any prior obligation for support that either party must pay to a prior spouse arising from a prior marriage.
3. The mental health of both parties, both parties age and physical wellbeing, and the duration of the marriage.
4. A custodial parents with children from the current marriage needs to own the marital residence and to remain in use of the marital residence and its household goods.
5. Whether or not either party expects to receive a pension, retirement, or deferred compensation that are not part of the current marital property.
6. An equitable claim of any type or a direct or indirect interest or contribution made to acquire marital property by a party who does not possess title. This includes efforts that are made jointly as well as expenditures and services and lack of contribution and/or services as spouse, earner of income or an individual whom acts as a homemaker.
7. A contribution by either spouse, whether it be direct or indirect to help educate or develop the career of another spouse.
8. An increase in the value of separate property due to a direct contribution during the coarse of the marriage.
9. Whether or not marital property is liquid.
10. If there is difficulty in valuing an asset or an interest in a corporation, profession and or business entity and the desire of either party to retain that interest in a manner that is free and clear from interference of the other party.
11. Tax Consequences to either party.
12. If either party has preserved, maintained, expanded, developed, wasted, neglected, converted, or devalued marital property after the date of separation and prior to the final distribution of all assets.
13. If one party dies prior to the distribution of assets.
14. A well founded factor that a court deems just and proper.