Protecting Your Most Valuable Asset

Asset Division

One of the primary issues in most divorces is the division of assets. Depending on the state, assets will either be divided under community property law or equitable distribution. Under community property law, a couple’s marital assets are split right down the middle. Equitable distribution laws divide marital assets fairly—which does not always mean equally. In fact, it can be much tougher to predict the outcome of asset division when equitable distribution laws are followed.

Assets such as savings, pensions, 401(k)s, IRAs, vacation homes, stocks and bonds, mutual funds, the marital home, and automobiles are all considered marital assets to be divided during a divorce. New Jersey operates under equitable distribution laws when dividing marital property during a divorce. While it is generally presumed the split will be roughly equal under equitable distribution laws, requests for unequal distribution will be argued for specifically and substantiated during the discovery process.

Which Assets are Considered Marital Property?

New Jersey courts will first make the determination as to which assets are considered marital property—usually property which was acquired prior to the marriage is non-marital and property acquired after the marriage is considered marital, subject to certain exceptions. In some cases, property or assets which came to one spouse through an inheritance or a gift, may not be considered marital property, unless that property has been commingled with other marital property, or if the property has increased in value during the marriage. Any property one spouse claims as his or her sole and separate property will probably have to have a solid argument to back up the claim.

Justification for Unequal Distribution of Marital Assets

While New Jersey law provides that the marital asset distribution should be considered “equal,” it allows for unequal distribution based on other relevant factors. One such factor centers around the relative contributions made by each spouse to the marital assets. Each party’s individual financial circumstances may also be considered in that if one spouse has greater demonstrable need they may receive more than 50% of the marital assets.

New Jersey statutes also allow for a larger award to one spouse when it is found the other spouse intentionally dissipated, depleted or destroyed marital assets within two years of the divorce filing. New Jersey also employs a provision which allows the court to consider other factors not specifically noted in order to ensure a truly equitable distribution. Adultery is generally not considered during the division of marital assets unless the act included dissipation of those assets.

Factors Associated with Equitable Distribution of Assets in a New Jersey Divorce

When dividing marital assets, the court may consider any number of factors, including the following:

  • How long the marriage has lasted;
  • Money or property brought to the marriage by each spouse;
  • The age of each spouse;
  • The physical and emotional health of each spouse;
  • The overall economic circumstances of each spouse;
  • The standard of living the couple enjoyed while married;
  • Pre- or post-nuptial agreements;
  • The ability of each spouse to earn a living, based on the level of education, job experience, childcare responsibilities, and length of absence from the job market;
  • Whether one spouse delayed pursuing his or her career goals during the marriage;
  • The length of time it may take for one spouse to acquire training or education to become self-supporting;
  • Contributions of either spouse toward the education of the other;
  • Whether one spouse “wasted” marital assets;
  • The debts and liabilities of both spouses;
  • The present value of all marital property, as well as what tax consequences distribution of the assets will bring, and
  • Any other relevant factors.

What About Marital Misconduct?

While marital misconduct in and of itself does not result in “punishment” by the court, if one spouse is shown to have dissipated marital assets during the marriage, then the judge could award the other spouse a larger portion of the marital assets. This could happen if one spouse wasted marital assets through an activity such as gambling, drug use or excessive shopping. In certain cases, if the judge finds one spouse’s behavior particularly shocking or egregious, then the other spouse could be awarded a much larger portion of the marital assets (as an example, if one spouse attempted to murder the other).

The Marital Home

The marital home is often considered a couple’s primary asset, and there are many options to divide the home. The couple may agree to sell the marital home and divide the proceeds, or one spouse could buy out the other’s interest in the home. If there are minor children of the marriage, then there might be an agreement which allows the primary caretaker of the children to remain in the marital home until the children are grown, then place the home on the market. Some couples may choose to trade retirement assets for the family home, however one major consideration for the spouse who retains the house will be the ongoing expenses of maintaining the home (repairs, taxes, etc.).

Business Valuations and Executive Compensation

Couples who have operated a business together during the marriage will have another step in the division of assets. The business will need to be valuated, which can be a very complex procedure. New Jersey law requires an equitable distribution of the fair value of the business, which is both a different concept, and a different final number than fair market value. The fair value of the business encompasses the value of the business to each spouse, as well as their individual contributions to the business.

A forensic accountant—as well as a New Jersey family law attorney who understands the applicable legal standards and business accounting practices—are crucial for a truly equitable division of a business. Similar to the division of the marital home, one spouse may buy the other spouse’s share of the business, both spouses can keep their interest in the business and continue to operate the business together, one spouse’s interest in the business may be offset against other marital assets or the business may be sold, and the proceeds divided.

Executives often receive compensation packages consisting not only of the base salary, but of stock options, cash bonuses, performance shares and restricted stock. While more difficult to calculate, these sources of income must also be included when dividing marital assets, and determining alimony and child support. The value of the executive spouse’s compensation package may be determined, then a lump sum given to the other spouse, or investment accounts may be liquidated, then the proceeds divided.

Asset Division During Your Divorce

Having a highly experienced attorney from the Williams Law Group by your side can ensure you receive your fair share of the marital assets. Our attorneys will negotiate an equitable settlement on your part and will be y our advocate from start to finish. Do not trust your future to a less- experienced family law attorney. Contact the Williams Law Group today at (908) 810-1083.