If you are getting divorced in New Jersey, do you know what property you get to keep and what you have to split with your spouse? Who will be responsible for your marital debts when you split?
New Jersey is an equitable distribution state. Equitable distribution means that the marital property will be divided between spouses in a way that is equitable, or fair. The court decides what’s fair based on a set of factors designed to show how the spouses contributed to the marriage and what each of you will need to move forward after divorce. The division does not have to be equal.
The court’s involvement in the division assumes that the spouses alone could not resolve their property disputes. Throughout the divorce process, you will have opportunities to work with your spouse to split your property between yourselves, without court intervention. The court will usually accept a written property settlement agreement that details what each of you will keep or split up. It is only where you could not reach a compromise with your spouse that the court will step in and divide your property for you.
Before the court can divide your property, it needs to know which property belongs to the marriage, which belongs to the spouses separately, and how much there is of each. Marital property is all property acquired or earned during the marriage. The court will presume that any new property gained during the marriage is marital property, regardless of what title says. Even gifts given between the spouses – except the engagement ring – are marital property.
Separate property is property owned before marriage or after one of you files for divorce. It also includes some property that you receive during marriage, like gifts from anyone but your spouse or an inheritance. Also, if your separate property increases in value during the marriage or if you receive any income from it, then most of the time that asset will remain yours alone.
There are a few circumstances, however, when an increase in the value of your separate property could be characterized as marital property. For example, if you owned a beach house before marriage, but your spouse built a deck around it, painted it, and helped maintain it during marriage, and it increased in value, then the court might be persuaded to give your spouse an equitable portion of the value of the increase. Likewise, if you treated the beach house as a rental property during marriage and your spouse helped to manage the property, then the rents, too, could be marital property.
The distinction between marital and separate property is important because you get to keep all of your separate property at divorce. The court can’t award it or any part of it to your spouse. On the other hand, all of the marital property must be divided.
The most common types of property subject to division are real property like the family home, personal property like jewelry, and intangible property like income, dividends, and even lottery winnings. Debts are included, too. The court will treat debts the same as any other intangible property. Before dividing a debt, the court will have to characterize it as either marital or separate and then assign responsibility for it based on the same equitable principles applied to the distribution of assets.
Find out if you can get an Annulment in New Jersey.
The court will look to a long list of factors to divide the marital property equitably. They include:
Absent from the list is a spouse’s fault in causing the marriage to fail. Although it might devastate you personally if your marriage ended because your spouse had an affair or otherwise behaved badly, that’s almost never a relevant factor when the court divides your property. However, it might be considered relevant if your spouse tried to kill you or cause your death.
Alimony is a payment from one spouse to the other to help sustain the recipient spouse after divorce. Although it is not part of the property division process, the court considers many of the same factors. If you request alimony, then the court must also consider your spouse’s ability to pay and will structure the payments based on your specific needs. If you need to go back to school, for example, the court can order rehabilitative alimony. Or, if you helped to pay for your spouse’s medical or other training, you could get reimbursement alimony. The court could also order permanent alimony or limited duration alimony, depending on the circumstances.
Learn more about New Jersey Divorce.
You can read the law on division of property and alimony in the New Jersey Statutes Annotated Sections 2A: 34-23-1 and 2A:34-23(b), respectively. To read more on how an increase in the value of separate property during marriage can transmute into marital property, see the case Scavone v. Scavone, 230 N.J. Super. 482, 486-93, (1988). If your spouse tried to kill you, you might get the court to consider that fact in the property division by using the case D’Arc v. D’Arc, 164 N.J.Super. 226 (1978) and 175 N.J. Super. 598 (App.Div. 1980), where the court kept property from the husband who had “taken out a contract” to have his wealthy wife murdered.