One of the most difficult and challenging issues in a divorce is the division of property. Throughout a marriage, the spouses will acquire property together. This includes everything from the mundane to the extravagant. When a couple divorces, this property must be divided between them. While this process may seem simple, the law has certain requirements and special procedures related to how the property can and must be divided following a divorce. In New Jersey, there are certain guidelines that must be followed when dividing property.
Marital Property Versus Non-Marital Property
The first step in dividing property is determining what property is eligible for distribution in the divorce proceedings. Property that is considered "marital property" is any and all property attained by either spouse during the marriage. The other type of property is known as "separate property," which is property that belongs solely to one spouse, and it will not be considered in the property division proceedings. For the most part, it is easy to tell which category each fits in, however, there are some special circumstances that can lead to some confusion.
Marital property can be far reaching. "Property obtained during the marriage" can pertain to nearly everything that the spouses have at the time of the divorce. This includes physical assets such as a car, a house, or even gifts, as well as intangible things such as debts and bank accounts. Marital property can even extend to property that has the title solely in one spouse's name.
Separate property can be difficult to discern sometimes. If a spouse has any high-value property prior to marriage, such as a home, or car, these things will typically fall under separate property. However, in a situation where the spouses are married and during the marriage, these properties are improved upon in some way and they increase in value, such as adding an addition to a house, then the value may be considered when it comes time to divide property in court.
Under New Jersey law, property must be split between the spouses according to the doctrine of equitable division, sometimes referred to as equitable distribution. Under this principle, the court will divide the property in a way that is "fair" to both sides. However, interpretations of "fair" are dependent on what is established in the court of law, and under the ruling of the courts, fair does not have to be equal. Property division does not need to be settled by rule of the court. Instead, spouses can work to form a settlement together that divides the property without the court getting involved. Then, they need only have that settlement finalized in court. If the spouses cannot reach a compromise, then the court will intervene and utilize the process of equitable division to settle the matter.
Factors Used To Determine Equitable Division
When dividing property, the court will use a number of different factors pertaining to the marriage to determine what is "fair" to each spouse when property is being divided. These factors include:
- Duration of the marriage: The length of the marriage plays a role in how the court perceives each spouse's time spent with one another, and potentially the depth of the marriage, as well has how much time they have spent acquiring property.
- Standard of living achieved during the marriage: The court will factor in how the spouses lived during the marriage and attempt to preserve that standard when dividing property.
- The value of property at present: The property's current value will play a role in itemizing the property in order to assign it.
- Spouse's contributions to the marriage: "Fairness" may be based on how much each spouse had contributed to the marriage, and what properties had been acquired by which spouses.
- Each spouse's finances post-divorce: The spouse's financial status will be considered when dividing property, especially if one spouse had been dependent on the other.
- The sacrifice of any career or educational goals: If one spouse had sacrificed considerable career or educational opportunities and no longer has the time or capabilities to pursue them, the court may grant them more assets. This also plays a role in permanent alimony payments.
- Each spouse's current and potential earning capacity: Along with financial status, if a spouse has the capability to earn more, this will be considered as well.
- Whether or not a spouse contributed to the education or furthering the career potential of the other: If a spouse has provided contributions to their partner's educational or career goals, this will be factored into the court's decisions. This also plays a role in reimbursement alimony.
- Debts and liabilities of each spouse: Along with any property, debts, and liabilities will be split among the spouses as well. This can be challenging as some debts may be split regardless of who initially acquired them.
Any "faults" in a fault divorce situation are not typically considered in the way the court divides property unless the spouse at fault has committed serious and dire acts or crimes against the other. Alimony does not play a role in any property division proceedings, and neither does child support. These items will be considered separately, and have their own specific processes.
Property division can be a frustrating and emotional time for parties who are undergoing divorce proceedings. When divorce proceedings begin it is of utmost importance to obtain the counsel of an attorney. Having an attorney on your side throughout the divorce and property division process can help protect your interests. In a property division case, your attorney can work together with your spouse's attorney in order to generate a fair settlement. Conversely, if one cannot be reached, an attorney who will stand up for you and advocate for your interests in court can make all the difference.
If you or a loved one is involved in matters of Family Law, contact attorney Joseph D. Lento today.