DIVIDING ASSETS IN DIVORCE

In the divorce world, the law in New Jersey calls the process of splitting assets and debts equitable distribution. There is a 3-step process for dividing assets in a divorce.

HOW ARE ASSETS DIVIDED IN A DIVORCE?

Step #1: Determine what assets and debts are included in the equitable distribution.

Assets included in an equitable distribution may range from the marital home, a business, bank accounts and automobiles to stock options, pensions, bonuses and lottery winnings. Generally, courts have defined marital property to be property acquired by either or both spouses from the date of marriage to the filing of the divorce. Conversely, some main categories of separate property include property acquired prior to marriage, property acquired during the marriage as gifts from third parties or by inheritance, or property acquired after the filing of the divorce complaint from post-complaint efforts. Courts have held that separate property must be kept separately and not allowed to be co-mingled to prevent it from being identified as marital property.

In addition, if separate property is improved during the marriage, it may also become marital property. Courts will also consider whether any incremental value to the property was a result of a market fluctuation or a result of the contributions and efforts by one spouse towards the asset’s growth to determine if incremental value is subject to distribution.

             Common Equitable Division of the Assets:

•       Real Estate – land, homes, timeshares, commercial property
•       Bank accounts – savings and checking, money markets, college savings plans
•       Vehicles – cars, boats, motorcycles, RVs, ATVs
•       Personal Property – furniture, jewelry, collectibles
•       Investment Accounts – brokerage accounts, stock portfolios, mutual funds, restricted stock, stock options
•       Retirement Accounts – pensions, 401Ks, IRAs, deferred compensation
•       Life Insurance with Cash Value

SEPARATION OF ASSETS IN DIVORCE

What assets are excluded from equitable distribution when dividing assets in a divorce? Inheritances, property acquired prior to marriage, property acquired during the marriage as gifts from third parties, or property acquired after the filing of the divorce complaint from post-complaint efforts. Courts have held that separate property must be kept separately and not allowed to be co-mingled to prevent it from being identified as marital property. In addition, if separate property is improved during the marriage, it may also become marital property. Courts will also consider whether any incremental value to the property was a result of a market fluctuation or a result of the contributions and efforts by one spouse towards the asset’s growth to determine if incremental value is subject to distribution.

HOW TO FAIRLY DIVIDE ASSETS IN DIVORCE

Step #2: Determine the value of all assets and debts.

Next, we have to assign a value to the marital property for purposes of distribution when dividing assets in a divorce. This step may be as straightforward as looking at bank statements or it can be a more complicated process such as retaining an appraiser to value real estate or an accountant to value a business, or to analyze business benefits, such as deferred compensation, restricted stock or stock options.

Common valuation methods:

•       Real Estate – Zillow, CMA, appraisal
•       Bank accounts – statements
•       Vehicles – Kelley Blue Book or NADA values
•       Personal Property – valuations are rare
•       Investment Accounts including brokerage accounts, stock portfolios, mutual funds, restricted stock, stock options – statements, grant documents
•       Retirement Accounts – statements
•       Life Insurance with Cash Value – statements

EQUITABLE DIVISION OF THE ASSETS

Step #3: Divide the assets and debts in the divorce.

             In step three, the court is granted wide discretion to determine the most equitable way to divide the assets in a divorce. In accordance with New Jersey’s Equitable Distribution Statute, courts will consider the following factors:

1.       The duration of the marriage;
2.       The age, physical and emotional health of the parties;
3.       The income or property brought to the marriage by each party;
4.       The standard of living during the marriage;
5.       Any written agreement made by the parties before or during the marriage concerning an arrangement of property division;
6.     The economic circumstances of each party at the time the division of property becomes effective;
7.       The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage;
8.       The contribution by each party to the education, training or earning power of the other;
9.       The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker;
10.   The tax consequences of the proposed distribution to each party;
11.   The present value of the property;
12.   The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects;
13.   The debts and liabilities of the parties;
14.   The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children;
15.   The extent to which a party deferred achieving their career goals; and
16.   Any other factor which the court may deem relevant.

DIVORCE AND SPLITTING ASSETS: ISN’T IT JUST 50-50?

The 50-50 split regarding the division of assets in a divorce is a myth and not the law in New Jersey. This is what often occurs, but it is not always the case. What types of cases don’t usually have a 50-50 split? There has to be something unique going on – such as a previously owned asset that has appreciated during the marriage due to the efforts of both parties or exempt assets such as an inheritance. One purpose of this statute is to take into account the role of a homemaker or stay-at-home parent or spouse in what courts have viewed as a joint enterprise. Thus, if one spouse acquired all of the marital assets through earned income while the other spouse stayed at home and took care of the children, a court would recognize that the marriage is a partnership and would presume that the marital property was acquired through the efforts of both spouses.

DOES LEGAL TITLE MATTER?

The title under which the asset was acquired does not determine how that asset is divided in a divorce. For example, if a house was purchased in the husband’s name during the marriage, it could still be considered marital property subject to equitable distribution. The wife still has an equitable claim to distribution of the value. Finally, one should also note that courts have excluded fault as a factor in the distribution of property at the time of a divorce.

THE ROLE OF FAULT IN HOW ASSETS ARE DIVIDED IN A DIVORCE

Regarding how assets are divided in a divorce, one should also note that courts have excluded fault as a factor in the distribution of property at the time of a divorce.

Dividing assets in divorce should not be left to chance. You want to make sure you get what you are entitled to. Give us a call today at DeTorres & DeGeorge Family Law to make sure your rights are protected.

Rosanne S. DeTorres

Ms. DeTorres is the managing partner and co-founder of DeTorres & DeGeorge Family Law. She is also only one of 150 attorneys in the State of NJ that is certified by the NJ Supreme Court as a Matrimonial Law Attorney. Ms. DeTorres graduated...

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