Ann Fabrikant, Esq.NJ Divorce and Family Law Attorney
Not all states are equitable distribution states, but New Jersey is. Before we even answer the titular question, be sure to learn the term “equitable distribution” and learn it well. ‘Equitable’ sort of sounds like ‘equal’, right? That may be so but they do not mean the same thing. ‘Equitable’ does not mean equal. It means ‘fair’. At that, your ears should have perked up because ‘fair’ is by no means as cut and dry as equal. Equal is equal, but fair means criteria. Not only will we discuss what counts as marital property but we will also delve into that criteria. It is important to remember that a couple can work this all out on their own, with the help of counsel and present it to the court in a settlement agreement. If they cannot come to an agreement, then the Court will decide “who gets what” after a lengthy and expensive trial.
What Is Marital Property?
Let’s start with two distinct categories. There is marital property and there is premarital property. Whatever is deemed as premarital, or acquired before the date of marriage, belongs to its owner at the time of divorce. All that is deemed marital, or acquired during the marriage (but before the Complaint for Divorce is filed) must be divided. Even gifts you gave one another will be considered marital and be divided. The only grey area really isn’t that grey. If you owned a home or property of some kind before the marriage and your spouse made contributions or improvements to it after the marriage, even contributing to costs, then that home or property might not be considered totally separate any longer.
What Are The Deciding Factors?
As stated earlier, the matter of property division in a divorce wouldn’t make it to a court unless the divorcing couple arrived at a disagreement, most likely over a compromise….or a sense of what’s fair. And so, if fairness is the point of contention, any court in an equitable distribution state will be ready to help settle your affairs. Rest assured, the factors are exhaustive:
- Who are the spouses? How old are they? How is their health? How long have they been married? What did they bring to the marriage, in terms of property and income? Did they have a prenuptial agreement regarding division of assets?
- How are they living? What is their standard of living? What is their respective worth and income now? What contributions did either spouse make to the marriage, including those as a homemaker? What is the state of the property accrued and maintained during marriage? What are the debts and liabilities?
- What does the future look like? What is each spouse’s income or earning capacity? How long has it been since each has been employed, if not currently employed? What does each spouse’s resume look like, in terms of education and experience?
Property division is a major aspect of the divorce process but you will find that it overlaps quite a bit with other issues, such as child custody and alimony. Bear in mind that between you, your spouse and your attorney, it is entirely feasible to work out an agreement. Please call this office if you have any questions regarding Marital Property.