Is fault used in dividing marital property?

Fault is not relevant in an equitable distribution proceeding, except to the extent that marital misconduct has had an economic impact on the marital estate. Where the equitable distribution factors make it equitable for one spouse to receive more (or less) than 50% of the net marital estate, a court’s award would be unequal, that is other than 50/50.

Unequal distributions come in all percentages, from 51.2% / 48.8 % to 95% / 5%, for example. Because, however, the vast majority of cases lack facts that weigh in favor of an unequal distribution, many litigated cases and most equitable distribution cases that settle result in each partner’s receiving half of the property. Thus the standard court case results in an even 50/50 split of the property.

The typical negotiated settlement on marital property also tends to be quite close to a 50/50 division, unless the spouses can agree to a different allocation. In a negotiated settlement, any ratio is permitted. The real question is what percentages the parties can agree to.

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