In divorce proceedings, dividing up items bought during the marriage can be a difficult question. Many couples come to a property settlement, either on their own or with the help of an attorney, that both parties agree to abide by. Other couples depend on the court to mandate the property division, but courts in different states handle this matter in two distinct ways. Some states consider all items purchased by either spouse during the marriage to be community property that requires equal division in the event of a divorce. Others, like Colorado, follow a system of equitable distribution. 

Here are some important things to know about equitable distribution, also known as “common law” property division. 

What property falls under equitable distribution?  

All property acquired by the couple during the marriage would be subject to equitable distribution upon separation. However, items acquired individually by one spouse during the marriage, most often by gift or inheritance, would not be a part of the equitable distribution determination. For example, if one spouse received an inheritance in his or her name alone, the other partner would not receive any part of the inheritance. Property acquired by either spouse before the time of the marriage also remains each party’s separate property. 

How is equitable distribution determined?  

Depending on individual income and assets of divorcing parties, equitable distribution may award more property and assets to one spouse. Often, the person who contributed more financially during the marriage will receive a larger share of the property. However, the courts do not judge based on finances alone. Other factors are also taken into consideration. The needs of each spouse, the custody arrangement, non-financial contributions that each spouse made during the marriage and any adverse actions that accrued debt or caused harm to the other spouse during the marriage can also affect what the court determines to be equitable distribution.