Family Law Information Center

Division of Property

When there is little or no marital property, no children, no issues of alimony or spousal maintenance, amicable spouses can usually obtain a quick divorce. Most divorces, however, are quite different and far more complex. The typical divorce involves a union of a number of years with considerable marital property, both personal property and real estate, children, family businesses, large or concealed debts, trust funds, real estate in other states, joint and separate accounts, investments, insurance, pensions, and other assets. In these complex situations, the parties often cannot divide their property on their own and therefore may require the assistance of experienced legal counsel for its ultimate division.

Equitable Distribution of Community Property

While specifics differ from state to state, a majority of states use the equitable distribution of property approach to divide marital property. There are many factors and statutes involved in the equitable distribution process. In New Jersey, for example, in making an equitable distribution of property, the court shall consider, but not be limited to, the following factors:

• 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
• The standard of living established during the marriage or civil union
• Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution
• The economic circumstances of each party at the time the division of property becomes effective
• 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 or civil union
• The contribution by each party to the education, training or earning power of the other
• The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker
• The tax consequences of the proposed distribution to each party
• The present value of the property
• The need of a parent who has physical custody of a child to own or occupy the marital residence shared by the parties in a civil union couple and to use or own the household effects
• The debts and liabilities of the parties
• The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children
• The extent to which a party deferred achieving their career goals
• Any other factors which the court may deem relevant

N.J. Stat. Ann. § 2A:34-23.1

Any separate property is retained by the spouse who owns it. In general, separate property includes:

• Gifts and inheritances given just to that spouse
• Personal injury awards received by that spouse
• Proceeds of a pension that vested before marriage
• Properties purchased with the separate funds of a spouse
• A business owned by one spouse before the marriage, although a portion of it may be considered community property if the business increased in value during the marriage or both spouses worked at it

Property to Be Divided

Certain kinds of property continue to create controversy at divorce, even under the clear division rules of the community property system. Divorcing couples need to be aware of these assets and the issues their division may present.

• Family Home. The primary residential property owned by the divorcing couple is often the marriage's largest asset. Dealing with its division can be complicated, particularly when there are children involved.
• Pensions. Pensions are often the second largest marital asset. When there are other income sources sufficient to compensate the non-pension holder, courts may leave vested pension rights in the spouse who earned it, but arrange for future distribution. Otherwise, under a federal law that makes division of pensions easier, a court in a divorce case may enter a Qualified Domestic Relations Order (QDRO) requiring the administrator of the pension to make payment to both the worker and the former spouse.

Conclusion

Many couples have a difficult time reaching an agreement about how to divide their property. Because the specific rules in each state vary significantly and because the division of property depends on the complexity of your assets and liabilities, it is important to consult with a family law attorney in your state for assistance if you anticipate the division of property is likely to be an issue of controversy in your divorce.

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