If you are getting a divorce in New Jersey, your spouse and you will need to decide how to divide your property, or have the court decide for you. The property and debts that you obtained with your spouse while married are usually considered marital property, subject to division during divorce. Often, it is possible for a couple to negotiate or go to mediation to develop a property settlement with which they can live. At Leopold Law, our Bergen County property settlement lawyer may be able to help you reach a settlement with your spouse during a divorce, or we can take your case to trial as necessary.The Process of Making a Property Settlement
New Jersey follows the rule of equitable distribution. This means that marital property is supposed to be divided fairly, but that does not necessarily mean that each spouse gets an equal share.
Fairness is determined by the courts according to multiple factors. Under N.J.S.A. 2A:34-23.1, these include:
- How long the marriage lasted,
- The age of each spouse,
- The income or assets that each spouse brought into the marriage,
- The lifestyle established during the marriage,
- Valid prenuptial or postnuptial agreements providing how property should be divided,
- The spouses' economic situation,
- The degree to which each spouse is able to earn and each spouse's actual income,
- The extent to which a spouse put off the pursuit of career plans during the marriage, and
- The time and expense for a spouse to get the education or training needed to have the same standard of living as was achieved during the marriage.
Other factors include contributions by one spouse to the other's education or earning power, as well as their contributions to getting (or losing) marital property. In general, though, the court may consider any factor that it feels is relevant.
Judges determine how much weight they will give any of these factors. However, most New Jersey judges place great weight on how long the marriage lasted and the marital lifestyle. When devising a settlement with the assistance of a property settlement attorney in Bergen County, couples often consider the same factors while negotiating, and mediators trying to assist with a property settlement may also point to such factors.
When the marital estate is being divided, a negotiating spouse should be aware that fault will rarely enter into the calculation. For example, it is unlikely that one spouse committing adultery will change the division of property. However, if a spouse misused marital property, the court might assign the other spouse more assets in order to make up for the lost funds. There may also be an exception for truly shocking or criminal conduct.
The first step in distributing the property is identifying which property is part of the marital estate and which is separate property. Property that was acquired by the spouses before getting married or that was received as a gift or inheritance during the marriage is separate property, and each spouse is supposed to leave the marriage with their own separate property. The only property that is divided is what is characterized as marital property. The burden is on the spouse claiming that property is separate property to prove this claim. A Bergen County property settlement attorney can counsel you on whether you may have a strong argument that an asset is separate property.
At the time of a divorce, a couple is likely to have a lot of commingled property. Even if a settlement is possible, it may be necessary to hire an accountant to trace the funds that went into the property to determine whether it is still separate or whether it has been transmuted, such that it is marital property. Separate property can be changed into marital property by changing title to the property during the marriage, or through commingling. For example, if one spouse bought a house as separate property, but both spouses wind up making improvements to it with income earned during the marriage, any increase in value may be marital property.
The next step will be to value the property that is considered marital property. Property is usually worth its fair market value. It may be necessary to retain an expert appraiser to determine the value of more complex assets, such as a business or real property. Similarly, it can be difficult to value a retirement pension, intellectual property, or goodwill, and experts may be needed to place a value on those assets for the purposes of equitable division.
A property settlement can be negotiated between spouses with just attorneys or with the help of a mediator. This is preferable for many couples because it allows them to have some control over what happens to their property, rather than leaving the big decisions up to the courts. Only when a couple cannot reach any sort of property settlement will the court need to step in and make the decision for them.Consult an Experienced Property Settlement Lawyer in Bergen County or Beyond
Our capable team at Leopold Law may be able to help you achieve a fair and appropriate property settlement in a divorce. We handle family law matters in Bergen, Passaic, Hudson, and Essex Counties. Call Leopold Law at (201) 345-5907 or contact us via our online form to set up a free consultation.