How will my property be divided after divorce?

Jan 10, 2014

When a marriage ends in a New Jersey divorce, the spouses’ property (assets and liabilities) must be divided between them. In New Jersey, this is done through a process called equitable distribution, which is governed by N.J.S.A. 2A:34-23(h).

Under the statute, all marital property is to be divided equitably regardless of title. This is based on the theory that the marital relationship is akin to a partnership, so the assets of that partnership should be fairly divided. However, it is important to note that equitably does not mean equally.

To determine how to distribute the property between the spouses, the court will conduct a three-step process: (1) determine what property is to be distributed, (2) value that property, and (3) decide how to equitably divide that property.

Under step 1, the property that is to be distributed is the marital property. The statute defines marital property as “property, both real and personal, which was legally and beneficially acquired by [the parties] or either of them during the marriage.” Therefore, any property that either you or your spouse or partner contribute to the marriage or civil union, regardless of title, will be considered marital property for purposes of equitable distribution. This means that if you buy a house during your marriage and it is titled only under your name, that house is still marital property subject to distribution.

However, property of one spouse or partner that is owned by gift, devise, or inheritance is not marital property and will not be subject to equitable distribution. This means, for example, that if you inherited a house from your grandmother during the marriage, then that house is your individual property and will not be subject to equitable distribution. Once it is determined which property is marital property, that property will be valued for purposes of the distribution under step two.

Pursuant to step three, in order to determine how to equitably divide the marital property, the court will take into consideration the factors set forth in N.J.S.A. 2A:34-23.1. These factors include the following:

·         The duration of your marriage or civil union;

·         The age and physical and emotional health of you and your spouse or partner;

·         The income or property brought into the marriage or civil union by each of you;

·         The standard of living established during your marriage or civil union;

·         Any written agreement made by you and your spouse or partner before or during your marriage or civil union concerning an arrangement of property distribution;

·         The economic circumstances of both of you at the time the division of property becomes effective;

·         The income and earning capacity of each of you, including educational 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 reasonably comparable to that enjoyed during your marriage or civil union;

·         The contribution by each party to the education, training or earning power of the other;

·         The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;

·         The tax consequences of the proposed distribution to each of you;

·         The present value of the property;

·         The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;

·         The debts and liabilities of both of you;

·         The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;

·         The extent to which a party deferred achieving their career goals; and

·         Any other factors which the court may deem relevant.

Clearly, dividing property between spouses or partners is a very fact-sensitive inquiry. It is important for you to speak with an experienced New Jersey divorce lawyer who will be able to advise you of the facts and circumstances surrounding your New Jersey divorce to determine the best way to present your case to the court and to ensure that you receive your fair portion of the marital property.

If you have questions about property division in your New Jersey divorce, please contact the attorneys at Sarno da Costa D’Aniello Maceri LLC at 973-274-5200.