What's Mine Is Yours
By Snyder & Sarno on March 12, 2014
As part of every New Jersey divorce, spouses are required to deal with the issue of dividing marital property (which includes both assets and debts) in a process called equitable distribution. Marital property is defined by N.J.S.A. 2A:34-23(h) as: “property, both real and personal, which was legally and beneficially acquired by [both spouses] or either [spouse] during the marriage.”
“During the marriage” is generally regarded as the period from the date of your marriage ceremony until the date that the divorce complaint was filed. It is important for you, when going into a hearing involving the distribution of your marital assets and debts, to completely understand the definition of marital assets /debts and how that translates into the equitable distribution of property in your New Jersey divorce.
One key issue to be aware of is that it does not matter whose name the asset or debt is in (i.e. one spouse individually or jointly). As long as an asset or debt was acquired during your marriage, it is subject to division no matter the title in which it is held. However, as with any rule, there are exceptions. Anything that either you or your spouse acquired during the marriage by gift, devise, or inheritance is not considered marital property. Any gift, devise, or inheritance is individual property and will not be distributed in your New Jersey divorce.
Additionally, in general, any property that you acquired before your marriage and that you kept separate and apart from your marital property and did not comingle with your marital property is not considered marital property and will not be distributed. You should be careful here, though, because it can get tricky. If this individual property is maintained or improved with money acquired during the marriage, it may transform into a marital asset and be subject to division. Additionally, property that you acquired before marriage, if you purchased it in contemplation of marriage, will be subject to distribution.
Moreover, if you have entered into a Pre-Nuptial Agreement prior to your marriage, any property delineated in that Pre-Nuptial Agreement as separate property, will also not be subject to division as part of your divorce as long as that Pre-Nuptial Agreement is determined to be valid and enforceable.
There are a few frequently asked questions regarding certain assets and whether they are considered marital assets to be distributed upon divorce. A major concern of many people is whether their pensions or other retirement accounts are subject to equitable distribution. A pension and other retirement accounts are indeed assets, and, if acquired during the marriage, will be distributed. Generally, a spouse is entitled to a portion of whatever part of the pension / retirement account accrued during the marriage itself, even if the pension or other retirement account was started prior to the marriage. Thus, the amount that gets distributed from a pension or other retirement account varies depending on the circumstances, ranging from a small portion of a short period of pension / retirement account accrual to a portion of the entire pension / retirement account.
Another common question is whether a professional degree is considered an asset to be distributed. In New Jersey, an advanced degree or professional license is not considered an asset and so will not be equitably distributed. However, reimbursement alimony may be granted to a spouse who supported the other through the earning of the degree.
There are many other assets that, if acquired during the marriage, are marital assets that will be equitably distributed. These include real estate, bank accounts, automobiles, and any other tangible or real property acquired during the marriage.
If you have questions about your property and whether it will be subject to equitable distribution in your New Jersey divorce, or how to prevent the distribution of your assets in the event of a divorce by entering into a Pre-Nuptial Agreement, please contact the experienced New Jersey divorce lawyers at Snyder & Sarno at (973) 274-5200.
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