One of the most heated and complex areas in divorce is the property division between spouses. While ideally the parties can come to an agreement regarding the distribution of their property after the divorce, this is not always the case and the division is often left up to the court.
If you are considering divorce, property division is only one of the legal issues that you will have to face. You should consult an experienced family law attorney right away who can help you navigate the complex procedures and laws involved in a divorce.
Marital vs. Separate Property
When it comes to property division, the first step is to determine which assets should be considered “marital property.” Only marital property will be divided between the parties. Those assets that are considered separate property are generally exempt from the court’s property distribution order.
In general, martial property consists of assets that were earned or acquired during the marriage. For example, this would include income earned while married and placed in a joint bank account, which was used to pay for household bills. Anything acquired with such money will also be considered marital property.
On the other hand, “separate property” only belongs to one spouse. Generally, this includes property owned by one party before the marriage or any gifts or inheritance received by a spouse before or while they were married. This also includes property that the spouses agreed on in writing to maintain as separate property.
Equitable Distribution Statute
When a New Jersey court has to make a decision on property division, there are a list of criteria provided by statute that it has to consider. These criteria include:
- How long the marriage lasted
- The age and health of the parties
- The income or property contributed by each party to the marriage
- The standard of living established during the marriage
- Any pre- or post-nuptial agreements made by the parties regarding property division
- Each party’s economic situation at the time the property division becomes effective
- Each party’s income and earning capacity, including educational background, training, employment skills, etc.
- The contribution made by each party to the education or earning capacity of the other
- Any tax consequences of the proposed property division
- The present value of the marital assets
- The parties’ debts and liabilities
- Any present or future need of a trust fund to secure foreseeable medical or educational costs for a spouse or children
- Other factors that the court may deem applicable
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