Home is where the heart is. But if your heart no longer belongs to the person with whom you shared that home, questions will likely arise regarding who – if anyone – should continue living there.

New Jersey divorce law uses something called equitable distribution to ascertain who gets what. Equitable distribution, as explained in NJ Rev Stat § 2A:34-23.1 , is not always a 50-50 split. Rather, equitable distribution weighs a series of factors to fairly divide both property and debt.

Where houses and other assets are concerned, it’s not the name on the title, deed or bottom of the check that will be the deciding factor. In fact, there are several elements to be weighed – the first of which being whether the asset is marital property or separate property.

Marital Property v. Separate Property

Simply put, marital property is defined as debts or assets that were acquired or earned in the course of the union – jointly or individually – which may include real property, personal property, vehicles, businesses, bank accounts, retirement accounts, loans, revolving debt and mortgages.

As our East Brunswick divorce lawyers can explain, property isn’t exempt from being considered “marital property” just because the title only names a single person. With a few exceptions, most wealth or debt acquired or grown during a marriage is considered shared, and thus subject to equitable distribution in a divorce.

Marital property is the default characterization of shared property or assets. Only separate property can be shielded from division by equitable distribution. Separate property are those assets and debts acquired:

• Before the marriage;
• After the filing of a Complaint for Divorce;
• Gifts or inheritance one party received from someone other than a spouse during the marriage.

Courts might also exempt certain property from the equitable division calculation if it was agreed upon in a prenuptial or postnuptial agreement.

Equitable Distribution Factors

If real estate (including a marital home) is considered marital property, the court will then weigh a list of statutory factors to determine how to dispense with it. This determination is less tedious if both parties agree beforehand about whether to sell the home or if not, which will continue living there and making payments.

It’s common for spouses to agree to sell a marital home. Often, neither can afford to continue making payments on a sole income. If one spouse chooses to stay, the court may order that individual to pay the other’s share of the equity – either directly or with an offset of other payments, such as alimony.

In any equitable distribution determination, the courts will consider things like:

• The length of the marriage.
• The age and physical/emotional health of both parties.
• The property or income each spouse brought into marriage.
• The standard of living of each spouse during the marriage.
• Any prenuptial or postnuptial agreements regarding how property should be divided in the event of divorce.
• How much the property is worth.
• The contribution of either party in acquiring, preserving, appreciating or depreciating in the amount or value of the marital property.
• The contribution of either spouse as a homemaker, and the extent to which one party deferred achievement of their career goals.
• The need of a parent who has physical custody of a child to either own or occupy the marital home and its effects.
• The tax consequences for each spouse.

It is important to always carefully consider all options.

Keep in mind that a Court order won’t automatically change one’s mortgage obligations. That means even if you leave the home and your spouse stays and the court doesn’t order you to pay a portion of the mortgage, the bank could still pursue you if your ex defaults on payment. It may be necessary for the spouse continuing to reside in the property to refinance the home solely in his or her name, so that the spouse waiving the home is protected financially.

If you have further questions regarding distribution of property in a New Jersey divorce, our knowledgeable divorce lawyers can help you weigh your choices.

To learn more about division of assets and debts in a New Jersey divorce, contact Rozin | Golinder Law today at (732) 810-0034.