Division of Assets

Dividing Property in a Divorce

By Peter Van Aulen, Esq.

Equitable Distribution

The State of New Jersey is an equitable distribution state. Therefore, Courts will divide marital property between spouses in a divorce in a way that is equitable and fair. This does not always mean a 50/50 split of assets. However, many divorces result in a 50/50 split of marital property because that is the equitable and fair outcome in those cases.

Marital Property

Marital property is any property acquired during marriage. Marital property is subject to equitable distribution. Property that is acquired during marriage is subject to equitable distribution even if it is titled in one spouse’s name. For example, if one contributes to a 401k retirement plan and only that spouse’s name appears on that plan, the amount that is contributed to the plan during marriage is subject to equitable distribution.

Non-Marital Property

Non-marital property is not subject to equitable distribution. Property that was acquired before marriage, property that was inherited or property that was gifted to a spouse by a third party is non-marital property and is exempt from equitable distribution.

Losing the Exemption From Equitable Distribution

If one takes property that was exempt from equitable distribution and commingles it with property that is subject to equitable distribution then said property may be subject to equitable distribution. For example, if one inherits $10,000.00 from his/her parents and then places it in a joint bank account with the spouse and that account has money in it that was earned during the marriage, that spouse may then have an interest in those funds, even though they were inherited. Also, if a spouse owns real estate before marriage and significant improvements are made to that property during marriage, using marital funds, then the other spouse may have an interest in the increase in value of said property.

Factors Used in Dividing Marital Property

The Courts will consider the following statutory factors in dividing the couple’s property in a divorce:

• The length of the marriage.
• Health and ages of the parties.
• Property or income brought into the marriage by each party.
• The parties’ standard of living created during the marriage.
• Any written pre-marital or post-nuptial agreements between the parties.
• The economic circumstances of the parties.
• Each parties’ income, earning capacity, education, employment skills, work experience, period of absence from employment, required education to procure appropriate employment and child care responsibilities.
• Each parties’ contribution to the other’s training, education and earning ability.
• Each parties’ contribution to the acquisition or dissipation of marital property and the contribution of a spouse as a homemaker.
• Tax consequences of distribution.
• The current value of property.
• The need of the custodial parent to possess or own the marital residence.
• The parties’ liabilities and debts.
• The need to create a trust fund to insure the payment of future medical and educational costs
• Any other relevant factor.

Fault is not a Factor

It should be noted that fault (the reason for the marriage failure) is not listed above as a statutory factor in the division of property. Thus, Courts usually do not consider fault when dividing marital property.

Conclusion

The division of property during a marriage can be complex. The outcomes are fact sensitive. You want to speak to an experienced New Jersey divorce lawyer. It is important that when you speak to an attorney you are able to relay all of the facts in regard to the acquisition of each property at issue. Call Peter Van Aulen today at 201-845-7400 for a consultation.

---

---