Monday, April 29, 2013

You Property Settlement in NJ May Not be Equal

Equitably Property Division in NJ Divorces Might be Anything Other than Equal


New Jersey is not a community property state.  Instead, in the case of a divorce, the court must determine an equitable, not necessarily equal, distribution of property.  First the court uses a three step process to determine assets and liabilities:

As set forth in Rothman v. Rothman, 65 NJ 219 at 232 (Ch. Div. 1974):  the Court must 1) decide what specific property of each spouse is eligible for distribution, 2) value the property for purposes of such distribution, and 3) determine how such allocation can most equitably be made.  In plain English that means the court must determine what the assets are, come up with a value for all assets, and then divide them equitably.  It goes without saying that this is net of liabilities, which may also be distributed based on equity, not just by cutting them down the middle.

Once there is a finding of the total assets to be distributed, the court then has a clear list of 16 elements to take into consideration in making an equitable distribution. 

NJSA 2A:34-23.1. Equitable distribution of property; factors to be considered
In making an equitable distribution of property, the court shall consider, but not be limited to, the following factors:
  1. The duration of the marriage;
  2. The age and physical and emotional health of the parties;
  3. The income or property brought to the marriage by each party;
  4. The standard of living established during the marriage;
  5. Any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution;
  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 factors which the court may deem relevant.

In every case, the court shall make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution, including specifically, but not limited to, the factors set forth in this section.

It shall be a rebuttable presumption that each party made a substantial financial or nonfinancial contribution to the acquisition of income and property while the party was married.

While property issues are difficult under community property laws, they are even more complex under NJ equitable division law.  Please call us for help in making sure that you do receive your equitable share of the assets you have contributed to generating in your marriage.
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