Every divorce is different, just like every family is different. However, one issue that comes up in almost every divorce is division of property and debt. New Jersey is what is called an “equitable distribution state.” This means that during a divorce, a court will make an equitable distribution of marital assets and marital debts. If you are involved in a divorce or facing one soon, you need to have a basic understanding of the basics of equitable distribution.
First, it is important to understand that an equitable distribution does not mean an equal distribution. This means that the court is not obligated to give both you and your spouse an equal share of the marital property. Instead, the court will look to a list of factors contained in the New Jersey code to determine how the assets and debts will be distributed. These factors include the duration of the marriage, the economic circumstances of each party, the income and earning capacity of each party, and the contribution by each spouse to the training or earning potential of the other spouse.
Second, a court will only distribute marital assets and marital debts. Separate property will not be divided in the divorce. Separate property is general property or debts that were owned or acquired by either party before the marriage began. Separate property can change to martial property, however, depending on how the parties treated the asset. For example, if the wife owned a home before marriage, but then during the marriage she adds her husband’s name to the title, they use the home as the marital residence, and the husband helps with the upkeep and improvements to the property, the court may rule that it is now a marital asset.
Finally, each spouse needs to understand that the way an asset or debt is titled is not dispositive of whether it is separate or marital property. Assets that are acquired during the marriage are almost always marital property, and will be divided in the divorce. The most common example of this is retirement accounts acquired through employment. Usually these accounts are only in the name of the employee spouse. However, whatever value is added to this account during the marriage is marital property and will be treated as such. This is so even though the value in the account accrued because of the work of only one of the spouses. The reason for this is that the law recognizes that the other spouse is supporting and contributing in other ways, even if that way means being a stay at home spouse.
If you are facing divorce, call us today. We can talk to you about your property and how it is likely to be divided.
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