The Relationship of Property Division and Alimony: The Division of Property to Address Need
92 Pages Posted: 22 May 2009
This article is an empirical study of six reformed common law property states early in their experience of equitable distribution. The study selects six states whose equitable distribution statutes one, gave the judge discretion to divide the marital property unequally; and two, had the most distributional factors related to post-divorce need. The study then analyzes appellate cases from those six states to see if need factors or contribution factors appeared to have the most sway with judges as they exercised their discretion on how to divide the marital property. At least in this early stage of equitable distribution, judges appeared reluctant to rely on greater post-divorce need to justify an unequal division in favor of the needier spouse. In most of the cases relying on need, the facts revealed egregious circumstances relating to poor health or other exigencies. Moreover, the need factors resulted in only slight deviations from an equal division of marital property. Again, at least in this early stage of equitable distribution, judges relied either on the written or unwritten presumption of equal division of marital property or on contributions to justify the division.
Suggested Citation: Suggested Citation