122 DIVorCe wItH DeCenCY
Property Division Guidelines
Never marry for money. Ye’ll borrow it cheaper.
—Scottish proverb
Hawai‘i and forty-one other states throughout the country have
adopted some form of equitable distribution principles with regard
to property settlements. The remaining eight states (Arizona, Cal-
ifornia, Idaho, Louisiana, Nevada, New Mexico, Texas, and Wash-
ington) apply community property statutes.
Community property basically means that everything that
has been acquired during the marriage belongs to both spouses
equally. Thus, the most hard-line community property states
(California, Louisiana, New Mexico) require by statute that prop-
erty must be divided in an exact and mandatory half-half fash-
ion. Equitable distribution makes a similar presumption that any
and all property acquired by the spouses during their marriage
is marital property and hence subject to division. The difference
is that the courts in these jurisdictions don’t always divide every-
thing exactly evenly. Instead, judges in equitable division juris-
dictions are authorized to divide things unevenly if necessary in
order to achieve what they view as an equitable result.
Equitable vs. equal. Equity is a slippery concept, but one that
the American judicial system attempts to quantify as a serious
and specific legal doctrine. Perhaps it can be most simply stated
as striving to achieve a general sense of fair play. Thus, if a judge
feels the need to deviate from an exact fifty-fifty split in order to
arrive at a result that is fair and equitable in a particular case, then
that judge has the ability to do so.
It is important to understand that equitable distribution prin-
ciples still generally start at a basic fifty-fifty analysis for property
distribution, in much the same way that a community prop-
erty approach does. The key difference is that judges in Hawai‘i
and other equitable distribution states are not absolutely bound
to follow an exactly even split the way they would be in commu-
nity property states. Judges in equitable distribution jurisdictions
have the ability to switch to a 40 percent to husband and 60 per-
cent to wife (or vice versa) distribution of the marital assets, or