Sussex County Divorce Property Settlement Attorneys
A divorce is a complicated and expensive undertaking. Many couples build a life together over years or decades, and during this time, they amass a good amount of shared assets and property. When a couple decides to divorce, they have to split those assets between themselves. Sometimes, spouses can easily agree on who should receive what after the split. More often than not, however, the division of property during a divorce causes quite a bit of contention between the parties. When soon-to-be-ex spouses cannot agree on property division, the matter becomes the purview of the court system. In New Jersey, the distribution of marital property can become a complex legal issue that can require the assistance of an experienced divorce attorney.
Like most other states, New Jersey is an equitable distribution jurisdiction, and “equitable” is not necessarily synonymous with “equal.” The spouses should walk away with what is fair, even when they do not receive the exact same amounts of money or portions of property. Although most divorce property divisions are roughly 50-50, New Jersey judges have broad discretion to divide the marital estate, which includes both property and debts, in accordance with certain factors. The overall goal is that the marriage dissolution should not constitute an unfair financial burden or an unreasonable financial windfall for either the husband or the wife.
The assertive attorneys at Hollander, Strelzik, Pasculli, Hinkes, Vandenberg & Hontz, L.L.C. stand up for your legal and financial rights during your divorce. We start by working with you to form a plan of action for your marriage dissolution. Then, we take aggressive action to put that plan into motion, and ensure that as much of it as possible is reflected in the final divorce orders. This approach has been highly successful in the past, and we are confident that it will also work in your case.
Classifying Marital Property
Before the judge divides property between divorcing parties, it must first be classified as marital or nonmarital property. As a general rule, any personal items, real estate, cash, or other property that a party acquired during the marriage, and not by gift, is marital property. However, the line between marital and nonmarital property is not always so clear.
Assume a husband uses money from his paycheck (marital property) to make the payments on a car that he purchased before the marriage (nonmarital property). Or assume that a wife uses a wedding gift from her parents (nonmarital property) to fund improvements to a house that the couple buys together (marital property).
In these instances and other similar situations, property is commingled. Commingling is especially common in marriages that last more than a few years. There are basically three possible outcomes:
- De Minimis Contribution: If the wedding gift mentioned above amounted to replacing a couple of area rugs or changing out a few light fixtures, the judge might well do nothing.
- Transmutation: If a husband had only made a small down payment and used marital funds to pay the balance on the car mentioned above, a judge might decide that the property has transmuted from nonmarital to marital property. Couples can also transmute property by mutual agreement.
- Reimbursement: Most likely, the judge would order the benefitting estate to reimburse the contributing estate. In this scenario, if the husband made $10,000 in car payments with marital property, then the husband must pay the wife $5,000 (her half of the community expenditure).
To properly characterize property, an attorney often partners with a forensic accountant or other professionals who can trace ownership. Since there is a marital property presumption in New Jersey, the challenging party must present clear and convincing evidence before the judge will re-characterize it.
In some cases, judges will order property to be liquidated and the proceeds divided between the spouses, but most cases do not involve liquidation.
Typically, a judge will approve alternative distribution, especially when real estate is concerned. For example, the wife could surrender a larger portion of her retirement account in order to keep all the equity in the house. Or, the husband could receive a lien for his portion of the equity, and when the house is later transferred, that lien must be satisfied.
To determine what is an equitable distribution, a judge must consider a number of different factors in the case, including:
Length of the Marriage: This factor tends to mitigate the “gold-digging” spouses while rewarding those who have made substantial non economic contributions to the marriage, as outlined below.
- Health and Status of the Parties: If, for example, the wife is considerably younger and more educated than the husband, the husband might have a more difficult time rebuilding wealth and therefore receive a disproportionate property share.
- Noneconomic Contributions: If one spouse eschewed career development to assume a caretaker role, that contribution is just as valuable as a monetary one, at least for property division purposes.
- Spousal Agreements: Judges are eager to enforce most all property agreements that are not patently one-sided.
The judge may also consider a number of other factors, including child custody provisions, the marital standard of living, and tax consequences of property ownership.
Fault as a Distribution Factor
Marital fault, such as adultery or domestic violence, is normally not a factor in property distribution, if the fault were largely emotional. However, most judges will consider this issue if there is evidence of dissipation (waste) of marital assets.
For example, assume the wife spent considerable sums of money to take vacations with someone with whom she was having an affair, or that the husband’s chronic alcoholism had financial consequences, such as lost income opportunities and/or unsuccessful stays in rehabilitation centers. In cases like these that feature an economic victim, judges are sometimes willing to adjust the division percentages.
Connect With Experienced Attorneys
Fair property division during divorce requires the assistance of a knowledgeable attorney. For a free consultation with an experienced family law attorney in Sussex County, contact Hollander, Strelzik, Pasculli, Hinkes, Vandenberg & Hontz, L.L.C. Convenient payment plans are available.