Seeking Property Division During Divorce in New Jersey
Possibly one of the most complex, and misunderstood, parts of any divorce proceeding is dividing marital property in an equitable way between the partners. Complicating this issue further is the fact that the laws for property division differ from state to state. Having lived in New Jersey for a long time now, and having been married in this state too, I was actually relieved to find that New Jersey is one state that believes in equitable division. What many people misunderstand is that equitable division does not imply an absolute 50% split. It means that the property is divided between the two divorcing spouses in a fair manner, which might not necessarily be equal, and only includes marital property.
Following my experience, I realized that this is one area where many people are confused, and therefore am sharing my learnings here.
What is Marital Property?
According to divorce resource site Divorce Source, during property division upon divorce under New Jersey law, a court “may make such award or awards to the parties […] to effectuate an equitable distribution of property […] which is legally and beneficially acquired by them or either of them during the marriage.”
What this means is that only those assets that have been acquired during the course of the marriage in question is considered “marital property” and will be considered for property division. This could include the marital home, bank accounts, investments (such as stocks and bond, retirement savings, etc.) and even businesses. Any asset that was owned by either spouse before the marriage is not considered for division. In addition, under NJ law, any asset that is acquired by either spouse in the form of “gift, devise, or intestate succession” will also not be considered for property division during divorce, even if that asset had been acquired during the course of the marriage that is being dissolved.
This is quite a relief because your inheritance is, therefore, protected against property division.
How is Equitable Division Ascertained?
The first step in the process of dividing assets is to distinguish between what will be considered marital property and what is separate property, according to the divorce attorneys at Ruvolo Law Group. Once such determination has been made, the assets that are to be considered for division will then have to be evaluated. This might be a simple affair in many cases, while in others, the services of an objective third-party accountant or appraiser might be enlisted.
Once, the total value has been estimated, it now becomes the court’s responsibility, especially in a state like New Jersey, to ensure that the assets are divided in a fair manner. Under Section 2A:34–23.1 of the New Jersey Statutes Annotated, several factors are taken into account to ensure equitable distribution, says DivorceNet, such as:
- The length of the marriage in question
- The physical and emotional health, and age of each spouse
- Income and/or assets that each spouse brought into the marriage
- Whether there is any pre- or post-nuptial agreement between the two spouses
- The standard of living that existed during the marriage
The overall economic condition of each spouse, as well as their capacity to earn
- Debts and liabilities of each spouse
- Contribution of each spouse in acquiring, improving, preserving or wasting any marital asset
- Various factors associated with child custody and responsibility
- And many more
Of course, the matter is more complex when there are children involved, since the court’s decision will have a bearing on the welfare of the children. The best course of action is to consult an experienced and skilled family attorney who can guide and support you through the process.