“Equitable Division” What Does That Mean Anyway?

Half Our Stuff

Most people walk into a divorce negotiation assuming that “Equitable Division of Property” means they will “get” or “give up” half of everything, but many are surprised to learn just how many different ways there are of dividing by two.  To begin with, what is “everything?”  Does it include personal debts like student loans, premarital assets, inherited property, and retirement accounts?  It depends.

At Rhodes Law, we begin the divorce divisions by evaluating the net value of all marital assets, excluding any premarital/inherited assets.  The net value is the total value of all the assets less any marital debts or other debts incurred to support the marriage. We call this net value and all the assets and debts within it the Marital Estate.

Once we’ve established the Marital Estate, then we look to divide those assets most simply and most fairly. Sometimes, instead of simply dividing every asset in half, it makes more sense for one party to have more cash assets and the other party to have more home equity. Sometimes, one party needs a greater share of a retirement asset to compensate for taking less of another asset. That means that “half” has a way of shifting depending on the circumstances in a divorce.

But, how does a party get a judgment or settlement that is “more than half?” or not “equitable.” A party’s conduct during the marriage can be the key factor to encourage a judge to award more than half the net marital assets to one party or another.  Bad conduct, such as adultery, drug or alcohol abuse, or domestic violence, will often justify a property division that tips the asset scale more in favor of one party.

What Factors Determine How Assets Will Be Divided?

It depends on how much property is to be divided, the separate assets available to each spouse, the needs of each spouse, the amount of debt, and the conduct of each spouse.  Most importantly, it depends on which judge you get or which jurors are chosen, and their mood.

The rule in Georgia is that marital property is subject to “equitable division.”  Equitable does not mean equal.

Equitable means:  Whatever the Judge Thinks is “Fair”

Also, whatever the jury thinks is “fair,” if you have a jury trial.  Unfortunately, no two judges and two panels of jurors are going to have the same ideas about what is “fair.”

“Fair”ness aside, while they don’t teach any math courses in law school, most judges can divide by two.  But since they can do this simple math, they will often start a property division by giving each spouse half the marital property and half the marital debt.  Then, they can start adjusting the balances until they get to “fair,” whatever that word means to them.

Scalpel Method vs. Hatchet Method

There are two basic approaches to dividing marital property beyond the halfway point.  The first is the scalpel method.  The scalpel method involves seriously considering each and every fact and opinion of the parties. The meticulous division of the assets follows this.  With the precision of a brain surgeon, the judge will divide up home equity and retirement plans, and furniture.  He will put aside the hundreds of backlogged divorce cases and focus his entire attention on the divorce at hand.  The parties will leave the courtroom happy and satisfied with the result.

I’ve never actually seen the scalpel method at work. I’ve only heard tell of it from lawyers who talk more than than they actually try cases.  The bulk of my experience is with the hatchet method.
The hatchet method goes like this:  The judge or jury listens to about 20 minutes of your case.  The judge spends the rest of his time drinking coffee, surfing the internet, or thinking about playing golf.  The jurors play Scrabble on their cellphones and make notes on how to get out of future jury duties.  So, when the time for decision-making arrives, they divide the assets in half and cleave an extra chunk to one side or the other to be, because this is what they perceive to be “fair.”

It’s impossible to predict exactly what will happen with the property division in a divorce.  An experienced attorney can give some perspective about what is common and uncommon. What some third party decides is the “fair” or equitable division ultimately determines the outcome.

Read more about marital property here