After spouses have separated, either party may file for equitable distribution of the marital and divisible property and debt. A claim for equitable distribution cannot be filed before the parties to a marriage separate. The claim for equitable distribution will be lost unless it is filed in court prior to entry of a judgment of absolute divorce.
Separate property is not subject to equitable distribution. Separate property is property acquired before marriage and property acquired by gift or inheritance during a marriage. A claim for separate property held by the other spouse is not an equitable distribution claim. A claim for separate property may be filed at any time.
Marital and divisible property and debt is subject to equitable distribution. Property acquired during the marriage is presumed to be marital property. Even though a pension or retirement plan was owned by a spouse prior to the marriage, any contributions to the plan by a spouse from marital earnings, or by the spouse's employer, is marital property and is subject to equitable distribution following separation. Increases in the value of marital property is also marital property and subject to equitable distribution, even if the increase in value occurs following separation.
Where parties cannot agree, the trial court will divide the marital and divisible property and debt based upon a number of factors, and an equal division is presumed by the court to be equitable.
In some cases a client may be entitled to an interim distribution of marital property or debt. This is often helpful where a party needs a place to stay, a vehicle or possession of the marital home.
Unmarried couples are not entitled to equitable distribution; however, they may have certain rights arising from partnership, contract, and property laws for property acquired during their relationship.
An equitable distribution case generally requires an experienced family law attorney. A party to an equitable distribution proceeding will be required to assist in the preparation of an equitable distribution inventory affidavit. The affidavit will list all the property and debt, classify each item as marital or separate, place a value on each item, and suggest a distribution of each item and debt. The client will need to have all of the information necessary for preparation of the equitable distribution inventory affidavit.
In some case, particularly when a client is without funds to pay an hourly fee, and there is sufficient property to be divided from which a reasonable fee can be derived, Mr. Kelso may agree to accept an equitable distribution case on a contingent fee basis. However, the fees in most equitable distribution cases, and cases for recovery of separate property, are based on an hourly rate.
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