How a court splits what a couple owns - and "equitable" means fair in that state's judgment, which is not the same as half.
Dividing property in a divorce happens in two steps, and most disputes are really about the first one. The court must decide what is divisible, and then how to divide it.
On the first step, states generally distinguish marital or community property - acquired during the marriage - from separate property, which typically includes what each spouse owned before marrying and what either received during the marriage by gift or inheritance. The line is easy to state and hard to apply, because separate property can lose its character. Money kept in a joint account, a pre-marital house that both spouses paid the mortgage on, or a business that grew through the work of both, may become partly or wholly divisible depending on the state's rules and on what can be traced.
On the second step the states split into two families. A minority are community property states, where marital property is generally owned equally and division starts from an equal split. The majority are equitable distribution states, where the court divides marital property in the proportion it considers fair after weighing statutory factors - the length of the marriage, each spouse's contributions including as a homemaker, their earning capacity and health, and in some states marital misconduct. Equitable means fair, not equal, and a court may reach any proportion the factors support.
Debts are divided too, and a court order allocating a debt binds the spouses, not the lender: a creditor whose contract is with both may still pursue either. Retirement accounts are their own subject. Dividing an employer plan generally requires a separate court order that the plan itself will accept - a qualified domestic relations order - and a decree that awards a share without one may not move any money.
The tracing questions are the ones worth paying for, because they decide the size of the pot before anyone argues about the split: property owned before the marriage, an inheritance, a gift, a house one spouse brought in, or a business started earlier are all commonly assumed to be safe and commonly are not. Advice is also worth having where a pension, 401(k), IRA or military or federal retirement is involved, since the order that divides it is a separate document with its own requirements and plans reject defective ones; where a spouse is self-employed or paid substantially in equity, bonuses or distributions; where one spouse handled the finances and the other does not know what exists; and where the marital home is to be kept, because keeping it usually means refinancing and qualifying alone. Assembling a full list of accounts, debts, policies and statements early is the single most useful thing a client can do, and it is cheaper done once than reconstructed later.
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