Stage Two Theoretical Framework Identify Themes

In U.S, most States have the equitable distribution laws for martial property.

However, states like California, Nevada, Arizona, New Mexico, Texas, Louisiana, Washington have community property laws. In community- property States, property distribution is a 50/50 split. In equitable-distribution States, the court determines a fair, reasonable and equitable distribution which may be more than or less than 50% of any asset to either party. The equitable distribution law in New Jersey is similar to most

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equitable distribution States. New Jersey law directs the court to consider fifteen factors in determining what is an equitable, fair and just division of assets. They are:

(a) The duration of the marriage

(b) The age, physical and emotional health of parties

(c) The income or property brought to the marriage by each party (d) The standard of living established during the marriage.

(e) Any written Agreement made by the parties before or during the marriage concerning an arrangement of property distribution or adjustment.

(f) The economic circumstances of each party at the time the division of property becomes effective.

(g) The income and earning capacity of each party including education background, training, employment, skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonable comparable to that enjoyed during the marriage.

(h) The contribution of each party to the education training or earning power of the other.

(i) The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker.

(j) The tax consequences of the proposed distribution to each party.

(k) The present value of the property.

(l) The need of a parent who has physical custody of a child to own or occupy the martial residence and to sue or own the household effects.

(m) The debts and liabilities of the parties.

(n) The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children.

(o) Any other factor which the court may deem relevant.

Based on these factors, the court can award a wife anywhere from zero to 100%

of each marital asset and the same for the husband. Most of the time, the court awards anywhere from 40% to 60%.

Exceptions: The only exceptions are the following property if kept separate.

1. Inherited property: This is real estate or money or any other properties inherited through a will or through inheritance laws of the State.

2. Property acquired prior to marriage.

3. Gift by a third person- gifts from one spouse to another are marital assets.

4. Gifts to your husband by a third person.

5. If an asset was acquired prior to the marriage, and there is an increase in value due to direct action or work by the other partner, the increase in value may be a marital asset but not the asset itself.

Marital Assets: The court will order equitable distribution of all property acquired during the marriage. The assets commonly distributed are:

1. Real Estate

2. Automobiles and other vehicles.

3. Stocks, Bonds, Cash and Savings Accounts

4. Individual Retirement Accounts, Pensions plans, and other funds set aside for retirement

5. Cash value of life Insurance Policies.

6. Furniture and Fixtures in all houses.

7. Business owned by one or both spouses.

Marital Liabilities: The court not only orders equitable distribution of marital property but also marital liabilities and debt.

Marital Debt: These include

1) The mortgage balance on the home

2) Any debts owed to banks, Savings and Loan, Association or any lending institutions

3) Car Loans, school loans (if not pre-marital), home improvement loan, any money borrowed during the marriage and have not paid back in full.

4) Loans payable to relatives or friends.

5) Unpaid bills at the time of the divorce.

Equitable Distribution

1. Equitable distribution is not automatically a 50/50 split.

2. Title does not count. It does not matter whose name the asset is in.

3. Every asset acquired from the date of marriage to the filing of divorce petition is subject to equitable distribution if acquired in contemplation of marriage.

4. Assets for Distribution can include (a) Retirement benefits through employment (b) Business or professional practices started during the marriage.

5. Assets which husband dissipated may still be subject to equitable distribution.

Example: You tell your husband you are going to see a lawyer. He goes to the bank and takes out 5000.00 dollars from the savings account. He later says he lost track of it or does not know where he spent it. The court may consider the 5000.00 dollars he spent as his share of assets and award you 5000.00 from the remaining assets. The obligation to prove the existence of the marital assets is that of either of the spouses as one spouse may try to hide some of the marital assets. The foregoing should be emulated in reforming the Nigerian MCA.

The factors to be considered by the court in marital property adjustment should be clearly defined in the Nigerian MCA and the discretionary powers given the Court by the MCA should be qualified by expressly providing in the Act, all-embracing factors in the adjustment of all items that fall within marital property. The needed reform has already started with the Nigerian case of Mueller v. Mueller¹⁴ where it was held by the Court of appeal that the partitioning of joint matrimonial property must be done on the basis of equity and that equality is equity.

Though the above is a Court of Appeal decision, the Supreme Court is enjoined to toe the same line to make the hue and cry on discrimination against women in marital

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property rights adjustment a thing of the past. In the alternative, let the relevant authorities reflect the 50/50 formula or a situation near it as part of the reform being agitated for in the Nigerian MCA.

CHAPTER THREE

FAMILY MAINTENANCE AND CHILD CUSTODY