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One of the major aspects of the divorce process is dividing up the marital property. All assets acquired during a marriage -- no matter whose name they are titled in, whether it be a house, a 401(k), or a business -- are subject to equitable distribution. Likewise, all debts, such as credit card debts, acquired during the marriage are also subject to equitable distribution.
New Jersey is an “equitable property” state meaning all assets and debts should be divided equally between the parties. But there are various factors that go into determining a fair and equitable way to divide the assets and debts so that both parties share the benefit and/or burden equally. At Helmer, Conley & Kasselman, our New Jersey property division lawyers can help you negotiate a fair and equitable settlement.
New Jersey’s equitable distribution rule does not apply to all property spouses own. Instead, it applies only to their “marital” property.
Generally speaking, an asset qualifies as marital property if it was acquired during the marriage. So, for example, if a couple buys a home after getting married, the home will qualify as a marital asset in most cases. In addition, furniture, appliances, electronics, vehicles, cash, bank accounts, retirement accounts, pensions, businesses, photos, and other items of property acquired during the marriage will typically qualify as marital assets.
In contrast, an asset will generally qualify as “separate” property if it was acquired before the marriage. In other words, any assets a spouse brings into a marriage are that spouse’s assets to keep after the marriage in most cases. So, for example, if you owned a couch before you got married and it is still sitting in your living room, it is likely your separate property.
But, there are exceptions on both sides. For example, certain assets obtained during a marriage may constitute separate property, but there are circumstances in which separate assets will convert into marital property. To make sure you know what is (and isn’t) on the table in your divorce, you will need to work closely with an experienced New Jersey property division attorney.
When it comes to dividing marital assets, divorcing spouses must consider the “equitable distribution factors” established under New Jersey law. Both spouses need to hire an experienced New Jersey property division lawyer to help them apply these factors appropriately. Not all factors will be relevant in all cases, and certain factors may weigh more heavily than others depending on the specific circumstances involved.
New Jersey’s equitable distribution factors include:
When divorcing spouses cannot reach a property settlement agreement on their own, New Jersey’s equitable distribution law, N.J.S.A. Section 2A:34-23.1, also allows for consideration of “[a]ny other factors which the court may deem relevant.”
In most cases, parties will reach an agreement as to how they want to divide the marital property. When parties cannot reach an agreement, the matter must be litigated in court. This leaves a judge to decide how to divide the assets and debts. If parties do reach an agreement, they can enter into a Property Settlement Agreement. This is essentially a written contract governing how the property is going to be split up. It is usually best to get an attorney to help you draft such an agreement to ensure that your interests are protected -- especially if you have a high net income.
In the New Jersey family court system there is a tremendous pressure to settle divorce cases. The plain truth of the matter is that there are too many divorce cases, and not enough judges to have a trial for all of them. 98% of divorce cases are settled before a trial. Moreover, going to trial is very expensive. Legal fees can be high. Moreover, the parties will have to spend a significant amount of monies on expert witnesses to testify at trial. The parties will also have to produce real estate appraisers, pension experts, stock market experts, business appraisers, and or accountants. These experts are not cheap, and they charge thousands of dollars to come to trial and testify. Therefore, in most cases it is a win-win situation if a reasonable settlement can be achieved.
Settlement agreements are agreements where divorcing couples determine their rights and responsibilities after the divorce. A settlement agreement, or a PSA (Property Settlement Agreement) is a contract between the spouses, and it determines the issues in the divorce case. The issues addressed in the PSA include alimony and child support, custody, parenting time, debts, and distribution of property subject to division. By negotiating a settlement, the parties can make their own legally enforceable contract, and avoid years of litigation, expensive legal fees, and years of stress.
At Helmer, Conley & Kasselman, P.A., our New Jersey family lawyers and divorce attorneys can help you determine what entitlements you may or may not have to certain property. We can help you negotiate a settlement that suits you and your family’s needs. Our goal is to help clients get divorced and move on with their lives in a way that is meaningful and financially sound.
Don’t let your rights be jeopardized.