The Court of Appeals in Burwell v. Burwell, reiterated and expounded that in division of marital property during divorce, equal may not — and generally is not an equitable distribution.

Parties had owed a marital home for over 20 years and during the divorce proceedings the trial court had ordered the sale of the marital home, and an equal division of the net proceeds.

Wife argued at trial that she should be entitled to 100% of proceeds, as husband had received a long incarceration sentence, had not made any contributions toward the upkeep of the house, had ever more limited contribution to the household prior to his incarceration, there were multiple infidelities during the course of the marriage, he has failed to adequately provide for his spouse during his incarceration, had not made any payment toward the mortgages or repairs of the property.

Incidentally, husband was incarcerated after conviction for murder of his mistress during the marriage – another factor which the trial court disregarded.

The trial court in support of order for equal distribution of the property cited husband’s ownership of the home with his brother before the marriage, completing an extension on the home, and also being mostly away from the jurisdiction in St. Louis while wife resided in the home.

The Court of Appeals emphasized that divorce law contains no presumption in favor of an equal distribution of property, instead, it requires the court to divide the marital property “in a manner that is equitable, just and reasonable.”

The trial court had erred in adopting a presumption of equal distribution before considering equities involved.

Moreover, the legal procedure is not a presumption of equal distribution until and unless the opposing party produce evidence sufficient to rebut the other party’s equal interest in the property.

Among relevant and critical factors in balancing equities, the court did not mention or considered the parties’ health and respective financial circumstances, which both favored wife.

Mrs. Burwell was on disability, she had no assets other than the marital home, and no prospect of employment or other income.

Husband on the other hand, had another non-marital property in St. Louis, no expenses, and prospect of employment.

The trial court had also failed to consider in any meaningful way husband’s long history of absence from the District, the marital home, his multiple adulterous relationships, murder of his mistress, and his allegedly threatening conduct towards Mrs. Burwell – all factors that in equity favor large distribution of the marital for wife.

The Court of Appeal remanded that case to the trial court to engage in a precise and conscientious weighing of all relevant factors including statutory or otherwise before reaching an equitable  conclusion about the proper distribution of the property.

The Statutory elements the court generally considers in an equitable distribution of assets are:

• The duration of the marriage or domestic partnership;
• The age, health, occupation, amount, and sources of income, vocational skills, employability, assets, debts, and needs of each of the parties;
• Provisions for the custody of minor children;
• Whether the distribution is in lieu of or in addition to alimony;
• Each party’s obligation from a prior marriage, a prior domestic partnership, or for other children;
• The opportunity of each party for future acquisition of assets and income;
• Each party’s contribution as a homemaker or otherwise to the family unit;
• Each party’s contribution to the education of the other party which enhanced the other party’s earning ability;
• Each party’s increase or decrease in income as a result of the marriage, the domestic partnership, or duties of homemaking and child care;
• Each party’s contribution to the acquisition, preservation, appreciation, dissipation, or depreciation in value of the assets which are subject to distribution, the taxability of these assets, and whether the asset was acquired or the debt incurred after separation.

Refer to our Washington DC Divorce Lawyer page for more details on this subject.