To the judge you will face in Family Court, divorce is nothing grander than the ending of an economic partnership. It is more than that to the people going through it, of course. To divorcing couples it is often an emotional trauma. But you need to understand that to your judge the job is only to equitably divide finances, deal with child-related issues, and move on to the next case."Equitably" does not necessarily mean equally. It means fairly. And to do that judges are required, by law, to base their judgments on certain factors. They are:
- The length of the marriage;
- The conduct of the parties during the marriage (meaning economic conduct, not moral);
- The age and health of the parties;
- The station of the parties during the marriage (i.e. their standard of living);
- Each party's occupation, income, vocational skills, and employability;
- Each party's assets and liabilities;
- The needs of each party;
- Each party's ability to acquire assets and income in the future; and
- The amount of alimony to be awarded, if any, and how long it will be paid.
In addition to those factors, judges and divorce lawyers divide marriages into one of three categories based on length: short-term, medium term, and long term. In short-term marriages, of less than five years, the court will typically try to place the parties back in the financial position they were in before marrying. In medium term marriages of roughly 10-15 years, they will divide just what was acquired during the marriage and, generally, not touch assets either party brought into the marriage. In long-term marriages of 20 years or more, there is an assumption everything the parties own is divisible and should be divided equitably. There is no bright line between these categories. Instead, they are discussed as bleeding into each other. A three-year marriage is certainly short-term while a 7 year one would be thought of as being "short-to-medium" term.
There is also a "rebuttable presumption," especially for medium and longer-term marriages, that assets will be divided on a 50%-50% basis. Rebuttable means that one party can argue that he or she is entitled to more than 50% if, for example, he or she contributed more to the marriage. That is not a simple question of financial contribution. The courts will view non-financial contributions, such as raising children and keeping the home, equal to the contributions of a high-earning spouse. You tend to see judgments that are unequal where one party has caused financial harm. Or where one has truly done nothing at home or work, while the other took care of everything.
Exactly where your marriage falls on the spectrum of short to long-term, and how the various factors are likely to play out in your case, is not something that can be reduced to a formula. That is as it must be if divorce judgments are going to be based on the facts of people's individual lives. You can only begin to know what is possible and likely for you through an extensive discussion with an attorney.