Apart from the issue of child custody, the most contentious part of hashing out any divorce agreement is dividing property between spouses. Commonly, divorcing spouses disagree over who gets the “marital house” in the settlement. Of course, spouses can agree to the terms of the divorce, including the issue of property division, in an uncontested divorce. If you are unable to come to negotiate an agreement with your spouse, the courts may need to intervene to divvy up the property between the two of you.
Equitable Distribution
As laws governing the divorce process are slightly different in every state, you must figure out whether or not you live in a “community property” state or an “equitable distribution state.” New Jersey, like most states, follows the equitable distribution rule, meaning that marital property is divided in a “fair and equitable” manner by the courts.
What Does a Judge Look at When Dividing Marital Property?
Not every single possession of yours is in danger of being transferred to your spouse during the divorce process. Only “marital property” is to be divided; marital property consists of, generally, any assets that came into the possession of you or your spouse during your marriage. A few notable exceptions exist, such as inheritances from a blood relative or gifts that were sent to you (and only you) by someone other than your spouse.
The judge will consider many factors when coming up with a fair and equitable way to divide your marital property. A few of these factors include:
- The existence of any prenuptial or postnuptial agreements
- The standard of living enjoyed by you and your spouse during your marriage
- The earning capacity of you and your spouse after the divorce has been settled
- Custody arrangements
- How each spouse contributed to the marital home
- The length of your marriage
These are just some of the factors that judges will look at.
Transmutation and Commingling
Many spouses who have been married for a considerable amount of time might see separate property (assets acquired prior to marriage) become marital property by way of commingling or transmutation. Commingling refers to separate property that becomes used by both spouses. An example of this would be a bank account that existed prior to the marriage but is deposited into and withdrawn from by both spouses. Transmutation refers to the changing of ownership of something, like when you add your spouse’s name to the deed of your house.
Conclusion
For the sake of efficiency and stress mitigation, it is recommended that you attempt to negotiate an agreement on what to do with your assets and properties that you and your (soon-to-be-ex) spouse can live with. You also have the option to visit a mediator before going to court. No matter which route you choose, though, you need to have a qualified and experienced attorney by your side to protect your interests and represent you effectively. Csépes Law Offices would be honored to help you with that. Call our firm today at 609-241-7111 and get started on your consultation.
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