During my initial consultation with prospective divorce clients, we discuss many issues related to the process. In many cases, men and women express concerns about financial survival when they’re no longer a couple. People are often surprised to learn how marital property is divided under New Jersey law. Equitable distribution is not based on the assumption of a 50/50 split of assets – or debts, for that matter.
The word equitable doesn’t translate to equal but instead means “fair.” The court looks upon a number of factors in determining how couples divide up their property. Additionally, there are some exceptions when it comes to equitable distribution. You won’t necessarily need to split up everything in your possession.
In the first place, New Jersey law makes a distinction between what’s considered marital property and separate property. Marital property generally concerns what you and your spouse acquire during your marriage. It’s also what’s subject to equitable distribution.
Again, there are potential exclusions. Did someone leave you an inheritance while you were still married or before you wed? As long as the funds were kept separate and you didn’t add your husband or wife’s name to a property title, you won’t have to share what was left to you in a trust or will. Meanwhile, that’s not to say you can’t still face prospective legal issues.
Did you receive settlement money or an award as a result of an accident case? Unless your spouse has a claim of their own, you aren’t expected to share the proceeds from a personal injury matter. Again, it all gets confusing when you commingle funds in the same accounts.
What about the property you owned before you took your vows? Once again, there’s the whole issue of commingling separate property with marital property. Additionally, you might think you’re entitled to a portion of what your spouse claims they brought into the marriage. What if you were the sole breadwinner and paid the mortgage and home improvements?
In the meantime, you might also not understand what constitutes marital property. It’s not just real estate or money in the bank. Nor is it limited to vehicle ownership or the contents of the family home. Retirement plans from both parties are subject to equitable distribution. The value of a business matters when it comes to dividing assets.
Couples with children often consider what happens to them as a primary concern. Their first consideration focuses on parenting arrangements and support. Meanwhile, determining who gets what remains an issue for everyone who’s decided that divorce is a reality.
You could easily decide to take an amicable approach to ending your marriage. However, it does take two. Admittedly, it’s hard to even think of being fair in some circumstances. Often, the choice is between battling it out or attempting to compromise.
If you’re getting divorced and thought everything would be split down the middle, you’ve learned something new. As an experienced family law attorney, I think it’s critical that people understand what they’re up against – as well as the process.