When a couple is getting divorced, they sometimes change their thinking from “what’s mine is yours” to “what’s mine is mine!” During this process, a common misperception is that if an asset (pension, 401K, car, etc.) is in only one person’s name, then it is not considered a marital asset and actually belongs only to the title holder and will not be up for grabs during a divorce. Surprise!!! For the purposes of divorce, the name on the title does not matter. Everything you and your spouse accumulate during the marriage is marital property and on the table for discussion for equitable distribution.
Of course, there are some specific circumstances in which an asset that was acquired during the marriage still may not be considered a marital asset and truly, entirely belongs to just one of the parties. These assets would not be eligible for equitable distribution. For example, an inheritance received by one party that was never comingled with marital monies or a settlement from an accident for your pain and suffering that was kept in a separate account.
Generally, however, since New Jersey is an equitable distribution state- assets are divided fairly, but not every asset has to be divided 50-50. It is possible for one party to get 100% of one asset and 0% of another. New Jersey law directs the Court to consider fifteen factors in determining what is an equitable, fair and just division of assets. They are:
- The length of the marriage
- The age and health (mental and physical) of the parties
- The income or property brought to the marriage by each party
- The standard of living established during the marriage
- Any written agreement made by the parties before or during the marriage regarding a property settlement agreement
- The economic circumstances of each party at the time of the division of property
- The income and earning capacity of each party
- The contribution by each party to the education, training or earning power of the other
- The contribution of each party to the acquisition, preservation, appreciation or depreciation of the marital property, as well as the contribution of one 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
- The debts and liabilities of the parties
- The need for a trust fund to cover expenses for reasonably foreseeable medical or educational costs for a spouse or children
- Any other factors which the court may deem relevant
So, in most cases, all assets acquired during the marriage are owned by both parties, and the plan for dividing them can be complicated. To make this process easier, couples often rely on a professional divorce mediator to help them with the task. Using a trained impartial mediator helps couples divide assets fairly without getting stuck on emotional feelings about who deserves more.