Yours, Mine & Ours: Equitable Distribution in New Jersey
We all know the story: Boy meets Girl. They fall in love. He buys a ring. She buys a dress. They get married, buy a house, fill it with stuff and live happily ever after. Except nowadays, for a lot of us, happily ever after comes to an end and Boy and Girl find themselves embroiled in divorce litigation. So what happens to the stuff? Property acquired during a marriage is divided by way of equitable distribution in New Jersey. Some states follow the theory of Community Property and simply split everything down the middle, but in New Jersey there is a three step process to determine who gets what at the end of a marriage.
First, the items to be distributed must be identified. Are there things you own that are not up for grabs and therefore not subject to equitable distribution? Sure. Equitable distribution only applies to property which is acquired during the marriage. In other words, if you owned it before the wedding chances are you’ll keep it after a divorce. Of course, there are some exceptions to that rule, but for the most part anything you owned before the marriage will remain yours. The items that need to be distributed are those you acquired together.
Second, those items must be valued. Sometimes that means that appraisals must be completed, for example if you own a house or a business. Other items are easier to value using websites like Kelly Blue Book for vehicles, or e-bay for tools or electronics. Of course, you can always stipulate to the value of an item, but chances are if it is in dispute, you want an appraisal. It is important to remember that the value of your items – especially furniture, tools and other personal property – is what it is worth today, not what it was worth when you bought it, or what it would cost to buy a new one.
Finally, the items must be distributed. Who gets what? Hopefully, the two of you can divide the contents of your home on your own, without spending a lot of money on lawyers to argue over who is going to get the coffeemaker, but the bigger items often require legal assistance.
Often people think that they are not entitled to share in items which are titled only to their spouse, but that is not the case in New Jersey. The Courts do not distinguish bank accounts held by one party as distinct from joint accounts. If the money that funded those accounts was earned or acquired during the marriage, it belongs to both of you. This is especially important when it comes to retirement accounts. Typically, retirement accounts can only be titled to one person, but they are still subject to equitable distribution. Pensions and deferred compensation accounts cannot generally be accessed without incurring tax penalties and fees, except as part of equitable distribution. In order to avoid certain penalties, distribution must be made pursuant to a court order. It is also important to know the type of retirement plan being distributed. Most pensions cannot be accessed until the participant is entitled to receive their share, so a wife who is entitled to collect a portion of her husband’s pension will often not be able to actually receive the funds until he retires and begins collecting. Most pensions allow a survivor benefit to be created, in case the participant dies before the spouse gets their portion, but some, like the Police and Firemen’s Retirement System, do not have such an option so it is important to protect the spouse’s interest with life insurance.
Houses are often a source of contention in a divorce, especially if there are children and one or both parties want the kids to remain in the home. If one spouse has the ability and desire to purchase the other’s interest, the courts will typically allow that rather than forcing a sale, but if neither of you can afford the house on your own, it may need to be listed for sale, even if you both want the children to remain there. It is also no longer uncommon for the debt associated with a house to exceed its value, so parties may need to bring money to a closing or talk to their lender about a short sale.
Remember, everything acquired during the marriage is subject to equitable distribution, and that includes debt. If one spouse has credit cards and carries balances, while the other pays their bills each month or never charges, the debt at the end of a marriage still belongs to both of you. Again, there are exceptions, but as a general rule both parties are responsible for marital debt.
It is also important to note that, unless the two of you agree otherwise, the date one party files a complaint for divorce is the date that ends the marital period. The date the parties separate or decide they want to divorce has no meaning when it comes to division of assets and debt. Only assets and debt acquired after the date a complaint is filed with the court will be exempt from distribution. Just because you may no longer live together does not mean you may not still be responsible for debt the other incurs, or have to share in savings or retirement benefits you earned.
Partner Jennifer Zoschak featured on CNBC.com
Jennifer Zoschak, a partner in the family law firm of Oswald & Zoschak in Lawrenceville, New Jersey is featured in this CNBC.com news article. Read the entire article here: Getting divorced without breaking the bank.