There are many working parts to a divorce. No doubt, you and your family attorney have discussed the different elements of your divorce, which may include a variety of issues ranging from child support to spousal maintenance. One issue that is likely at the center of your divorce is property division.
New Jersey is what is called an “equitable distribution” state when it comes to dividing property during a divorce. Any divorce attorney will tell you that this means neither spouse is automatically going to be awarded an exactly equal share of the parties’ assets. If you are facing a divorce, having an understanding of how your possessions will be divided can help you to prepare your family law attorney for your trial.
The first step in making an equitable distribution of your property is to determine what property is “marital property” and what property is “separate property.” Pursuant to New Jersey law, only marital property will be divided during your divorce. As a general rule, property that was acquired during the marriage is usually marital property.
Like any other area of law, there are exceptions to this rule. Property acquired through inheritance, gifts from people outside the marriage, or property acquired after the divorce complaint was filed are all examples of separate property.
Property that started off as separate property can also change to marital property depending on how the parties treat it. If the parties mix, or “commingle,” their property, it may become marital property. For example, if the wife owns a house before the marriage, that would usually be separate property. However, if the parties live in the house together, the husband helps significantly contribute to the value of the home, and the wife agrees to put the husband’s name on the title of the house, it likely has become marital property.
The vast majority of couples have not only assets but also debt. Sometimes this debt is attached to certain property, like with a car loan or a mortgage. In other cases, the debt will be unsecured, like a credit card. As with the assets, your divorce attorney will need to argue to the judge the nature of certain debts. Not all debts that are acquired during the marriage will automatically be designated as marital debt.
The next step in the process is to give a value to all of the marital assets. For some assets, this is straightforward. For example, with a savings account, the parties can simply examine the bank statement. Not all assets are quite so simple.
Family businesses are one common asset that are complex assets. Family businesses may have vehicles, inventory, real estate, accounts receivable, and sometimes even intellectual property. In many situations, an expert will be called in to provide an accurate value of the business into account.
After determining what is to be divided and the value thereof, the trial court will then look to a list of factors contained in New Jersey Statute 2A:34-23.1. During trial, your family law attorney will argue which of these factors apply in your case and how the judge should take the applicable factors into account. The judge has wide discretion when deciding how to apply the factors.
The factors contained in the statute include such issues to be considered, such as the duration of the marriage, the income and earning capacity of each party, the present value of the property, the separate assets available to each party, and the debts of each party. After considering these and other factors, the judge will decide what is an equitable division of your marital property.
The judge will also make a division of your debts. While much of the debt acquired during the marriage for the benefit of the marriage (such as for medical bills for the parties’ child or credit card debt to purchase groceries), your attorney may be able to argue that some debt should not be divided, but rather assigned totally to only one spouse. This becomes especially prevalent where one spouse has run up debt while pursuing an adulterous relationship.
We have extensive experience helping our clients with division of property issues. Contact us today to talk about your divorce and how the judge is likely to handle your case.
Are you interested in seeking an annulment? If so, contact Williams Law Group, LLC right away. Our family law attorneys will review your case to determine if an annulment is an option. If it is, we will guide you through the process and ensure you make the best decisions for your future. Call our office at (908) 738-8512, email us at firstname.lastname@example.org, or contact us through our confidential online form to schedule a consultation