The Court’s ultimate responsibility during any divorce (besides child related issues) is the division and disposition of all marital property and marital liabilities (debt). The factors a Court uses in determining how to divide are very broad. Some of, but not all of the factors a Court can use in determining how to divide the estate are: each spouses earning capacity, education, physical impairments and health, disparity of ages, the size of each spouses separate estate, and marital fault (adultery, mental or physical abuse, and cruel treatment).
The single most important factor in dividing the marital estate is the condition the estate is in at the time you file for divorce and when the Court divides it. Some factors to look at is whether your spouse has depleted the marital estate by “cashing out” such things as 401(k) and other investment/retirement vehicles, has your spouse accumulated a large amount of debt (most of the times credit cards), and if you own a home is the current market value lower than what you owe the mortgage company.
Some thoughts on adultery. The following are my personal thoughts on adultery and how they can impact a divorce. First of all you will hear lawyers all over the spectrum about how adultery will affect property division, from it’s catastrophic to it really doesn’t matter anymore. First there are two general types of adultery. The first is if you are still maintaining sexual relations with your spouse AND at the same time having an extra marital sexual relationship and/or sexual relations. This is the most detrimental (some say catastrophic) type and will almost always result in a disproportionate division to the non-adulterous spouse. If you have given your spouse a sexually transmitted disease because of your adultery the situation is even worse. The second type is far more common. Either you are still living together, usually in separate bedrooms, and haven’t maintained sexual relations for some time or you are already separated and either one or both of you have “moved on” and began either dating or seeing another person. The Courts are divided on this type of adultery. But my feelings are most Courts take the position that since the parties are either separated or haven’t maintained sexual relations for some time, then for all purposes the marriage is over, and as a result of the marriage breaking down, adultery, although still wrong, is an understandable effect given that modern realities are what they are.

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