During a marriage, spouses work for years or even decades to build stability and plan for their future. Typically this life-building includes amassing assets. These assets could take many forms ranging from real estate to art collections to retirement accounts. Moreover, it is very possible that the parties came into the marriage already having some assets. The parties may decide to maintain separate financial accounts during the marriage and never combine bank or credit card accounts. Regardless of how the parties handle their affairs, if the parties divorce, the issue of separation of property is often one of the most important issues to be decided. New Jersey is an “equitable distribution” state, which means that in the final hearing, the divorce court will make an equitable distribution of the parties’ marital assets. The court will look to a list of factors contained in the New Jersey statute to decide how the assets should be split up, and an equitable division will not always be exactly equal. However, the court will only divide marital property. Each party’s respective separate property is not subject to division in the divorce. In addition, although separate property will not be divided in a divorce hearing, the court will consider how much separate property each party has when determining the appropriate division of the parties’ marital property.
In general, property owned by each party before the marriage started is separate property, and property obtained after marriage is marital property. This is true regardless of which spouse’s name is associated with a particular asset. For example, if one spouse has a 401(k) through is or her employment, the contents of that account that accrued during the marriage is marital property, even if only one spouse’s name is associated with the account. Moreover, it is possible for property to change from separate property to marital property. If a spouse mixes separate property with marital property, then the separate property is said to be “commingled” with marital property and will also become marital property.
There are several important exceptions to the generality that property received during marriage is marital property. Property received by inheritance or by a gift from someone outside the marriage is generally considered separate property. In addition, personal injury awards from a lawsuit are also generally considered separate property.
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