Five Common Property Division Factors in New Jersey
New Jersey is an equitable distribution state. A divorce cannot be an unfair financial burden for either party, so marital property must be divided accordingly. That includes both debts and assets.
There is a presumption that a 50-50 division is equitable in most cases. So, for a Somerville equitable distribution attorney to obtain a disproportionate division, there must be substantial evidence in at least one of the following areas.
Length of the Marriage
If the marriage lasted a very long time, such as more than thirty years, or a very short time, such as less than thirty months, this factor could be significant. But very few marriages last a very long time or a very short time. Almost all of them are somewhere in the middle.
This factor is often significant if one spouse has substantially less wealth than the other spouse. If the marriage lasted a long time, the lesser spouse became accustomed to a high standard of living. If the marriage was only brief, the opposite is usually true.
Relative Earning Capacity of Each Spouse
Generally, people who are young, healthy, and well-educated have significant earning potential. So, if there is a significant discrepancy between the spouses in these areas, a disproportionate property award might be appropriate.
To avoid this distribution, one spouse could offer to pay more spousal support for a few years, so the other spouse could become economically self-sufficient. These setoffs are quite common in divorce financial settlements.
Agreements Between the Spouses
This factor might be the most important one of all. In general, the law favors out-of-court settlements. These resolutions conserve the court’s resources and give the participants more control over the outcome.
Most New Jersey judges approve most premarital and post-marital property agreements if both spouses had independent counsel throughout the process. Additionally, the agreement must not be blatantly one-sided (e.g. I get all the assets and you get all the debts).
Non-Marital Property Awards
If either spouse has been married before, s/he probably has significant non-marital assets, such as a share of a retirement account. Marital property awards do not occur in a vacuum. The judge may consider such property when dividing marital property.
Classification issues sometimes come into play here. Assume Wife owned a rent house prior to the marriage, and Husband used his expertise as a property manager to increase the house’s rental value. Depending on the specific facts, the house, and all future rents, could be Wife’s non-marital property, Husband’s non-marital property, or marital property subject to an equitable division.
Custody of Minor Children
Generally, it is in the best interests of the children for them to remain in the family home. Therefore, the residential parent often gets title to the home. In these cases, the nonresidential parent often receives a setoff, such as a reduced alimony obligation, or an lien for his or her share of the equity. Later, when the residential parent sells the house, that lien must be paid.
Contact a Dedicated Attorney
Marital property awards in the Garden State must be equitable. That’s not necessarily the same thing as “equal.” For a confidential consultation with an experienced New Jersey divorce lawyer, contact Katherine K. Wagner, Attorney at Law. We routinely handle matters in Somerset County and nearby jurisdictions.