One of the most fundamental concerns couples have during a divorce involves the division of their property. Property, from a legal perspective, includes personal property (things: tangible and intangible) and real property (real estate). Property also includes shared debts, mortgages, and intangible monetary sources such as stocks, bonds, and other assets. When deciding to file for divorce, it is important to consider the possible implications on your property. At The Law Office of Steven M. Cytryn, you can be confident that Mr. Cytryn, an experienced property division attorney, will act in your best interest and ensure you receive (or retain) the property you are entitled to.
Understanding Property Division in New Jersey
In accordance with New Jersey law, the property acquired by the spouses during their marriage must be divided among them during their divorce in accordance with a variety of factors. Often, parties are able to come to an amiable resolution amongst themselves, or with the assistance of their attorneys, regarding the division of their property. However, court intervention may be required in instances where disputes arise over the value of such property, such as business interests, or which party should be entitled to retain certain property.
“Equitable” Distribution
New Jersey is an “equitable” distribution state. That is, upon divorce, marital property will be divided equitably, but not necessarily equally Note that despite its name, equitable does not necessarily mean “equal” in the 50-50 sense, but rather, taking all things into consideration, each party deserves what they are entitled to and not more. According to the New Jersey statute governing the issue of division of property during divorce, the court may consider the following factors, as well as any other factor deemed relevant in making the property division determination:
-Duration of marriage
-Mental and physical condition of all parties
-Standard of living established during the marriage
-Income or property brought into the marriage by each party
-Any pre-existing prenuptial or antenuptial agreements that may dictate the division of property
-Income, education, vocational skills, and employment or employability of each party
-The contribution made to the marriage financially
-The tax consequences of the proposed division of property
-Desire to stay in marital home
-Shared debts
Each of these factors will be weighed by the court in coming to a “fair” division of the marital property during a divorce settlement.
Marital Versus Nonmarital Property
In dividing property upon divorce, property is further divided into “marital” and “nonmarital” property. Marital property is subject to division upon divorce, whereas non-marital property is not divisible and is maintained by whichever person brought it into or received it before or during the course of the marriage.
Non-marital property includes most income or assets brought into the marriage (though there are exceptions if the assets or income was commingled with marital accounts, etc.). Certain property, even if acquired during the marriage, such as inheritances or portions of personal lawsuit settlements, may also be exempt from being considered marital property.
Everything that is not non-marital property is considered marital property and is subject to property division upon divorce. Marital property includes income, assets, savings and checking accounts, equity in real property or securities, pensions, retirement accounts, and other earnings, tangible or intangible, acquired during the course of the marriage, regardless of whose name such property is held or titled.
Prior to equitably distributing property, the parties, or the court, must first determine which property is marital and which property is nonmarital. Once this determination is made, the court will determine the respective values of the property and divide the assets accordingly. Again, it is possible for the parties to come to an agreement as to how to divide their assets, but it is also critical that consideration is given to whether such property is marital or non-marital to begin with, or the possible consequences of dividing certain property.
Disputes Over Marital Versus Nonmarital Property
Some things are easier to divide than others. One of the spouses, for example, may have entered the marriage with a business, significant assets or retirement benefits. Couples may have also formed their own business during the time they were married. These circumstances complicate the property division, but the law allows for remedies in these more complex cases. Often, a business will be valued by a third party to determine its value; in this case, one party may buy out the equity of the other, or some couples may be able to continue running the business together depending on the circumstances of the divorce. In some cases, instead of actually dividing each asset, parties may agree to a division of property that allows one spouse to retain certain assets, while the other spouse retains others or equal or similar value, as appropriate under the circumstances.
If there is a dispute as to whether something is considered marital or nonmarital property, the burden falls on the person claiming the property is nonmarital to prove it as such. Thus, there is a presumption that income obtained during the course of a marriage will be divisible and considered marital property for the purposes of property division upon divorce.
Work With a Central New Jersey Divorce Lawyer
If you are considering divorce or in the middle of a property dispute with your spouse, it is critical to consider the implications of the division of your property. You may lose assets you were entitled to keep or fail to receive assets you were entitled to. To ensure your assets are fairly distributed given your unique circumstances, consult with experienced divorce attorney Steven M. Cytryn of The Law Office of Steven M. Cytryn today. Mr. Cytryn will help guide you through the property division process so that you understand your rights and responsibilities during this time. Call his convenient office in New Brunswick, New Jersey today to learn more.
