Navigating Property Division in Family Court

Understanding "Just and Equitable" Division in Court

Principles of Equitable Division

The court is required to make a “just and equitable” division of property after considering the circumstances of the clients. Notice that the law uses the word “equitable” and not “equal”.

• This is not any particular percentage.
• The court’s focus is on dividing the assets between the spouses and allocated them to the spouses towards an outcome that the judge believes is “just and equitable” in a particular case.

Characterization of Property

The court will first characterize (label) property as either community or separate.

• Essentially, things earned or accumulated during marriage are community and things earned before or after the marriage would be characterized as separate. (there are exceptions)
• After the court “characterizes” all of the property, the court must divide the property in a “just and equitable” manner.
• The court can share property it characterized as separate with the other spouse if the court believes that is appropriate to create “just and equitable”.

Application of Case Law

The court applies case law to shape what it finds is an appropriate outcome in each case, but it is all entirely fact dependent. There are very few cases in the case law that will tell a judge exactly what she/he must do in any particular case. Every case in case law is fact specific as is your divorce. No two cases are factually alike. It is a matter of “argument” and persuasion to get a Judge to apply a particular case from case law to a particular aspect of a case in front of the court.

Judicial Discretion in Family Law

Judges have broad discretion. She/he is able to apply the facts of a given case and create what she/he finds to be a “just and equitable” outcome. Unlike a specific business contract case, criminal law, or personal injury, the Judge in family law matters must exercise discretion in creating an outcome.