Seperate and Marital Property

There are more than one news storiy of spouses who were less-than-pleased to learn that their partners had filed for divorce. In a moment of revenge, these spurned spouses divided all of the property in their marital home in half – literally. Couches, tables – even cars and the house itself – have all been cut in half by spouses upset by the fact that their marriages were ending. The “inspiration” for their actions was, of course, property division laws that require courts to divide the marital estate in a “fair and equitable” manner or that give spouses an equal interest in certain property acquired during the course of the marriage.

Equitable Division of the Marital Estate

New Jersey’s property division statute requires courts to divide marital property in a “fair and equitable” manner as part of final divorce orders. Although this requires courts to treat each spouse in a fair manner, it does not necessarily require courts to divide all of the marital property 50-50. In other words, a court is free to consider a multitude of factors and award one spouse a larger portion of the marital estate than the other spouse so long as the court is able to articulate why doing so is “fair and equitable” to both parties.

The operative phrase in the equitable division laws is “marital property” – only property that qualifies as “marital property” is subject to division by the court. In other words, if property does not fit the definition of “marital property,” then the value of that property is not considered by the court in making its property division orders.

What sorts of property are outside the definition of marital property?

The following is a nonexclusive list of types of property that may not be considered marital property by a divorce court:

  • Property acquired before marriage: Typically, any property that either spouse acquires prior to marriage remains that person’s separate property, even if the property is used during the course of the marriage. For example, a car purchased by an individual when he or she is single will remain that individual’s separate property even after the person is married.
  • Property acquired by gift or inheritance: If one person receives property alone as either a gift from someone or through inheritance, this property generally remains that person’s separate property, even if the gift or inheritance occurred during the marriage.

Property that fits into either of these two categories will usually not be considered by the court in dividing the marital estate as long as it remains solely one party’s name.

When Does Separate Property Becomes Marital Property?

This distinction between separate property and marital property can be ignored in certain situations. Most notably, separate property that becomes co-mingled with marital assets can be considered marital property if the court is unable to separate the separate property from the marital property. For instance, if a husband receives a $50,000 inheritance while he is married to his wife, deposits this into a joint checking account, and then proceeds to pay various marital expenses over the next several years out of this account, he may have “co-mingled” his separate property with marital property. If the couple divorces, the husband may not be entitled to the full $50,000 value of his inheritance.

It is important to seek experienced legal counsel during a divorce to ensure your rights are protected during the property division process. Brick divorce attorney Peter J. Bronzino is experienced and knowledgeable in divorce-related issues and is available to help clients in and around Ocean County and Monmouth County. Contact the Bronzino Law Firm today by calling (732) 812-3102 and schedule your free initial consultation today.