Property Division, Equitable Distribution, and Marital Agreements
Characterization first
Equitable distribution states divide marital property; community property states divide community property. Separate property-premarital assets, gifts to one spouse, inheritance, and some personal injury awards-usually remains separate, but commingling, titling, and mortgage payments can create reimbursement or transmutation issues. Trace funds with account statements rather than labels. Debts are characterized too.
Division and valuation
Equitable does not mean equal. Courts weigh marriage length, each spouse's contributions, earning capacity, age, health, custody arrangements, standard of living, dissipation, and tax consequences. Valuation dates matter for businesses, retirement accounts, and stock options. A QDRO is often needed to divide a qualified plan; a pension may be divided by coverture or present value.
Marital agreements
Premarital and postmarital agreements are enforced if voluntarily executed, with fair disclosure, and without unconscionability. The Uniform Premarital Agreement Act and its successor require writing and signatures; some states require independent counsel or a waiting period. Separation and property settlement agreements are contracts that may be incorporated into the decree.
Worked example
Wife owned a house before marriage; husband paid the mortgage from a joint account. The house may remain separate, but the marital estate may claim reimbursement or a share of appreciation. The paralegal should collect the deed, mortgage history, and tracing records.
Traps
Assuming a 50/50 split; ignoring debt; using gross values; missing tax basis; forgetting QDRO timing; overlooking agreement formalities.