How will property be divided in my divorce?

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By John Jones, Esq.

In New Jersey, marital property is divided by a process known as “Equitable Distribution.” “Equitable” means fair and the process applies to the dissolution of a civil union as well as a divorce. It takes place in three steps:

1. The first step is to identify what property is marital and subject to equitable distribution. Generally, all property acquired by either party or by the parties jointly during the marriage is considered marital property and subject to equitable distribution. Property which was acquired before the marriage or civil union and which a party kept in his/her name only, is generally exempt. Similarly, inherited property or a gift from a third person, which a party kept in his/her name only, is generally exempt. All types of retirement benefits, such as pensions, 401(k)s, etc., are eligible for division.

2. The second step is to evaluate each item of property which is being divided. For instance, a marital home can be appraised to establish its market value. Even a pension which may not go into pay status for many years in the future can be appraised for its “present value” and divided.

3. The last step is the actual distribution of the property. The statute (law) which sets forth the criteria to be considered is found at N.J.S.A. 2A:34-23.1. It requires the parties or the court to consider sixteen factors, which are itemized in the statute. A few are: the duration of the marriage or civil union, the age and physical and emotional health of the parties, the income or property brought to the marriage or civil union by each party and the standard of living established during the marriage or civil union. However, the law makes it clear these are not the only facts to be considered, as the last item on the list is “any other factors which the court may deem relevant.” One factor which a court may not consider is marital fault (for example, adultery or cruelty).

As can be seen, there are innumerable variations which will affect this process. Thus, the opportunity for an attorney to present relevant facts to the court is limited only by the ingenuity, ability and experience of the lawyer.