A major issue that is usually involved in a New Jersey divorce concerns the distribution of property following marriage dissolution. In many cases, not all property will be subject to division between the parties. Separate property (premarital property, gift property, or inherited property) is generally retained by the spouse who owns it after a divorce. Community property, also referred to as marital property, will be distributed equitably by the courts if an agreement cannot be reached between the parties. Bergen County family law attorney Brian D. Iton has over 20 years of experience in this area of the law. He can advise you on your rights regarding community and separate property following a divorce.
It is important to note that couples may negotiate the distribution of their assets in a written settlement agreement, with minimal court involvement. In uncontested divorces, for example, the parties agree to all key issues involved, including how to split the marital property. The spouses may also reach a settlement during mediation or in a contested divorce, eliminating the need for a judge to make such major decisions.
If the court is tasked with dividing the parties’ assets, however, there are several legal considerations that may apply. New Jersey is an equitable distribution state, meaning that marital property acquired during the marriage will be divided fairly and equitably, but not necessarily equally. The first step is to classify property as either marital, and therefore subject to equitable distribution, or separate.
Separate property remains the property of the spouse who owns it after a divorce. It typically includes assets that one spouse acquired before the marriage, or received as an individual inheritance or gift at any time. As long as it does not change title, transmute, or commingle with marital assets, it will generally remain the property of the owner spouse. However, if the value of the separate property increases due to the efforts of the other spouse, this increase in value may be considered marital property. If the value increases due to external economic circumstances, the increased value remains separate property.
Marital property includes assets and debts acquired during the marriage. It may include the couple’s primary residence, vehicles and other household items, bank and savings accounts, business assets, pensions and social security benefits, life insurance, and more. In making an equitable distribution of property, the court will consider many statutory factors, including the duration of the marriage, the age and health of the parties, the income and property brought into the marriage by each party, the standard of living established during the marriage, any written agreement between the parties, the tax consequences for each party, the income and earning capacity of the parties, and the economic circumstances of the parties following the divorce. Although marital fault is generally not considered relevant, if one party has diminished the marital assets through misconduct, the court may compensate the other spouse for the loss.
There are many methods of distributing the marital property. For example, some assets may be sold to cover debts, one spouse may buy out the share of the other spouse in certain property, retirement accounts may be traded for other assets, or there may be other arrangements made to accommodate the interests of the parties.
Understanding your rights with the guidance of a divorce lawyer is an important step in protecting your interests. Bergen County family law lawyer Brian D. Iton can provide legal advice regarding property distribution and advocate for the interests of people going through this process. He represents people throughout Bergen, Passaic, Essex, and Hudson Counties, including in Paterson, Jersey City, Hackensack, and Newark. Call the Law Office of Brian D. Iton at (844) 431-3380 or use our online form to set up a free consultation.