Equitable Distribution Is Not Equal: An Analysis of Divorce Asset Distribution Laws
Jeff Bezos’s 2019 divorce case created one of the richest women in the world. His ex-wife ended up with a generous portion of his net worth and maintained her stake in some of their shared companies. While the settlement was widely discussed in popular culture, many commenters considered it a win for women since MacKenzie Scott was afforded immense financial freedom in an unprecedented way. This settlement is just one example of the positive effect of “equal division” (50/50) divorce laws as opposed to “equitable distribution” divorce laws. Both are methods of dividing property at the time of the divorce, but while 50/50 laws aim to split all community property equally, equitable distribution allows for more nuanced and subjective choices. Every state except Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Wisconsin, and Washington follows the principles of equitable distribution. The Bezos case was settled in Washington, where assets are distributed equally after divorce [1]. Current equitable distribution dissolution law exacerbates wealth and power inequalities within ex-marriages, often perpetuating patriarchal structures and allowing unfair dynamics to unduly influence legal outcomes. This article will specifically focus on the differences between California and Massachusetts dissolution law and the implications of promoting a shift from equitable distribution to equal division.
“Equity” is defined simply by the quality of being “fair and impartial” [2], yet our justice system should strive to achieve net equality as much as possible, especially when perfect equity is difficult to accomplish. Equality is “the state of being equal, especially in status, rights, and opportunities” [3]. While equality is generally understood as treating everyone the same and equity is understood as providing differentiated resources so that everyone can be successful, when it comes to divorce, equal division actually results in “fairer” outcomes. That is so because equitable distribution is, problematically, an inherently subjective principle. According to Massachusetts law, “the court may assign to either husband or wife all or any part of the estate of the other,” with consideration of the length of, and conduct during the marriage as well as various aspects of the parties involved like “age, health, station, occupation, amount and sources of income, vocational skills, [and] employability” [4]. The court is also urged to consider children and, in fixing the nature and value of the property to be so assigned, the contribution of each of the parties in making money and as “a homemaker to the family unit” [5]. The only requirement provided with respect to these considerations is that this division is “equitable” in the eyes of the judge. There are no clear guidelines provided on how a judge must consider said factors. It is not apparent whether someone should be awarded more because they earned more or whether they should be awarded less because in the future they can make more. In comparison, California law decrees that the court shall “divide the community estate of the parties equally.” [6]. Each party in the divorce is entitled to 50% of the community property accrued during the duration of the marriage.
For parties in a divorce, this means that, in states like Massachusetts, the side with the better-resourced legal team almost always wins their most favorable outcome. They can argue for a lopsided judgment in court that they otherwise would have to have achieved in a settlement. The less-resourced side has no leverage to negotiate a better settlement because they have no guarantee or entitlement to an equal division of assets should the case continue to a hearing. Even worse, because of the separation requirement for a divorce case to proceed, this legal battle can often be extremely one-sided in favor of the primary breadwinner in the marriage. For a couple to be considered separated such that they can file for divorce, they generally have to stop sharing finances. In single-income homes, this poses a huge inequality. One side may be unable to hire a qualified legal team because they have been cut off from funds earned throughout the marriage. A person is not entitled to a state-provided attorney outside of criminal law, and the few organizations that provide pro-bono support for divorce cases are over-inundated and thus have fewer resources to commit to any one case. The affected party might not work anymore, and until the court decides on a judgment, the joint finances from the marriage are often considered unusable. Because of this and the majority of households that have a male breadwinner, women have been disproportionately financially affected by divorce. Nearly half of all women who split from their partners experience an income decline of 25% or more within two years [7]. In our world where only 16% of marriages have a female breadwinner, and homemakers are devalued in divorces, women quickly become undervalued and under-awarded [8].
On the other hand, 50/50 distribution provides an objective solution to the division of assets and eliminates much of the inherent inequality and bias in deciding equitable distribution. According to Jennifer Shinall, a professor at the Vanderbilt Law School, “without an explicit legal mechanism to compensate working spouses for their permanently higher earnings trajectory and nonworking spouses for their permanently lower earnings trajectory,” equitable division laws promulgate economic disadvantages for women as a whole [9]. While equitable distribution frequently leads to diminishing the value of a woman’s role in the household, equal division quite literally assigns value to the role of “homemaking.” California’s law is rooted in its colonial history and the Spanish idea that a married couple should be treated as a single legal entity [10]. When considering the couple as one entity that attains assets, it necessarily recognizes that home-making is an equal contribution to wage-working. Both parties in the marriage are considered to contribute equally to their prosperity, or lack thereof, during the relationship. Problematic wealth dynamics that have been exacerbated by misogyny become diminished. Not only are courts forced to divide assets evenly, but in the face of contentious litigation, non-breadwinners are afforded stronger ground for negotiation.
It is also crucial to examine how alimony perpetuates inequality, particularly for women. While alimony can be seen as a solution to the unfair distribution of assets, it is still inconsistently awarded, largely at the discretion of judges, mirroring the issues seen with equitable distribution. Wealthier spouses often hire top legal representation to reduce or eliminate alimony obligations, arguing that their ex-partners should reenter the workforce quickly, even if they have been out for years due to caregiving roles [11]. Additionally, alimony is often temporary and may be terminated if the receiving spouse remarries or cohabitates, trapping individuals in financial dependence. Rather than rectifying economic imbalances, alimony can prolong power dynamics, with the higher-earning spouse retaining control over the other’s financial freedom. A 50/50 division of assets, however, eliminates much of the need for alimony. By ensuring assets are split equally at the time of divorce, it provides immediate financial security and allows both parties to move forward independently. This model reduces legal complexities and creates more predictable, transparent outcomes, giving women, in particular, a more solid foundation post-divorce.
Therefore, given the subjective nature of “equitable distribution” and its promulgation of problematic patriarchal structures, more states should adopt the 50/50 form of post-dissolution asset distribution. This shift would not only level the playing field in divorce proceedings but also offer a more sustainable path to financial independence for those who the current system has historically disadvantaged, particularly women. It would break existing cycles of inequalities and encourage the justice system to distribute fairer outcomes. Not only would judgments be more equal, but divorce settlements would also be affected by the change in law. Outcomes like the Bezos settlement would become more common for non-billionaire people who do not have access to great legal resources. Indeed, instating 50/50 asset distribution laws across more states is the path to real equality.
Bibliography
[1] “Equitable Distribution Legal FAQs,” Justia, last modified April 25, 2018. https://www.justia.com/family/divorce/docs/equitable-distribution-faq/#q8.
[2] "Equity," Oxford English Dictionary. n.d.
[3] "Equality," Oxford English Dictionary. n.d.
[4] . "Alimony or Assignment of Estate; Determination of Amount; Health Insurance," Massachusetts General Law, Part II, Title III, Chapter 208, Section 34, 2024.
[5] Ibid.
[6] California General Law: Family Code, Division 7, Part 2, General Provisions, Section 2550. Enacted by Stats. 1992, Ch. 162, Sec. 10, effective January 1, 1994.
[7] Josh D. Simon, “Pew Economic Mobility Project Divorce Statistics,” Divorce Magazine, October 6, 2014. https://www.divorcemag.com/articles/pew-economic-mobility-project-divorce-statistics.
[8] Ibid.
[9] Jennifer, Shinall, “Settling in the Shadow of Sex: Gender Bias in Marital Asset Division,” Cardozo Law Review 40, no. 4 (2019): 1857–191, https://cardozolawreview.com/settling-in-the-shadow-of-sex-divorce-marital-asset-division/.
[10] Bonnie, Ford, “Women, Marriage, and Divorce in California, 1849–1872,” California Legal History 16 (2021), https://www.cschs.org/wp-content/uploads/2021/09/Legal-Hist.-v.-16-Recent-Research-Women-Marriage-Divorce.pdf.
[11] Judith, McMullen, “Spousal Support in the 21st Century,” Wisconsin Journal of Law, Gender, and Society 29, no. 1 (2014), https://api.law.wisc.edu/repository-pdf/uwlaw-library-repository-omekav3/original/0d170fc93dd59f8b53051b307e553552b4a4a433.pdf.