How to Settle Your Equitable Distribution Claim:  Voluntary Agreement or in Court

It is possible to settle your equitable distribution claim in several ways, with the most common being either by a voluntary agreement, typically referred to as a Separation Agreement and Property Settlement or by filing a lawsuit in court.  

While it is generally cheaper and quicker to settle things voluntarily by agreement, you should still have an attorney review the proposed property division to ensure that all property is being accounted for and that everything is being appropriately divided.  When an agreement is reached, you and your spouse will sign a Separation Agreement and Property Settlement Agreement that operates as a contract between the two of you and which sets forth the specific property and debt that each of you will receive. Once you sign the agreement, you lose any right you might have had to bring a lawsuit against your spouse for an equitable distribution of property.  

In the event that you can’t reach a voluntary agreement, one of the parties may file a lawsuit asserting a claim for equitable distribution.  The parties will then follow the various steps and guidelines established by the District Court in the county in which the lawsuit was filed. This process typically involves the creation of an affidavit which identifies and values all marital property, separate property and debts and sets forth contentions as to whether an equal or unequal distribution of marital property and debt is equitable.  Frequently, parties reach an agreement regarding the division of property after filing a lawsuit either through ongoing settlement discussions or through mediation. If that happens, the parties may enter into a Consent Judgment or a Mediated Settlement Agreement regarding the settlement of their claims. If the case can’t be settled before trial, a Pre-Trial Order will be entered and a judge will be tasked with categorizing, valuing and dividing the parties’ marital estate and debts.