Equitable distribution is a term used in traditional divorce court litigation to describe the process of dividing or distributing property or debts (real estate, money, business interests, credit card debt, and other assets and liabilities) among the parties. The process accounts for and identifies both marital property and separate property. States that use a different system, called community property, do not also use the equitable distribution system. The two systems are separate and distinct.
Without getting bogged down in too many definitions and references, equitable distribution is used in the court system, but there is no formal process in Mediation. In the equitable distribution system, attorneys initiate the process by serving each other’s clients with interrogatories or other requests for financial disclosure. This process can take many months or more, as statements and valuations need to be obtained, and/or one of the parties may simply drag their feet. Full disclosure of all property and debts is mandatory in equitable distribution, and a judge, or appointed authority, may be involved in choosing who gets what, and why.
In Mediation, the parties are on the honor system. They must disclose all interests in property to accurately approach the division and distribution of marital assets. But there is no penalty that will be imposed on a party who does not reveal all. Mediation is a process driven by the parties, not the neutral Mediator, and it is very important for both parties to have equal access to information pertaining to property and debts in order for the process to be successful. For this reason, it is always advised that the parties in a divorce retain counsel to provide legal advice in what is ultimately a legal process. The Mediator can help the parties reach agreements, and their attorneys can offer legal guidance, if necessary. While equitable distribution is not necessary to become divorced, full disclosure of property and debts is required in order for the process to work – in the court system and in Mediation.