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Equitable distribution is the process by which the Court (or the parties by agreement) divides both marital assets and debt upon divorce. The authority for the Court to do so is provided by N.J.S.A. 2A:34-23.1, which directs the Court to consider a host of factors in its analysis.
These factors include:
- The number of years the marriage lasted
- The age and health of both spouses
- The income and assets that both spouses brought to the marriage
- The standard of living that was enjoyed by both parties during the marriage
- Any pre or postnuptial agreements signed by both parties concerning property division (if any)
- The economic circumstances of each spouse once the property division goes into effect
- The current income and earning capacity of each spouse (including access to training, education, etc.)
- The contributions each spouse made to one another's education, training, or earning power
- The contributions each spouse made to the value of the marital estate (including homemaking)
- The tax consequences or liabilities each spouse would take on in the property division
- The current value of the marital property
- Any child custody considerations (such as the custodial parent needing the marital residence)
- The debts each spouse has incurred over the course of the marriage
- Any current or future needs to create a trust fund for either spouse or a child
- The extent to which either spouse deferred achieving their career goals
- Any other factors which the court finds relevant to equitable division
If you are facing a divorce and have concerns about equitable division, then the time to speak with a proven Livingston matrimonial lawyer is now. Call Ziegler, Zemsky & Resnick at (973) 878-4373 today.
Equitable distribution is considered a “three-step process”: First, the court must decide what specific property of each spouse is eligible for distribution. Second, the court must determine the value of the property subject to distribution. Third, the court must decide how the allocation can most equitably be made. Rothman v. Rothman, 65 N.J. 219, 232 (1974).
Equitable distribution is grounded in the theory that the marital relationship is a partnership (Id. at 229). Accordingly, the fact that one spouse may have taken on a “supportive” role in the marriage as a stay-at-home parent will not preclude that spouse from sharing in the marital estate. Id. Notwithstanding, “equitable distribution” does not automatically translate to an “equal distribution” of assets between spouses. See Rothman, supra; Wasserman v. Schwartz, 364 N.J. Super. 399, 410-411 (Law. Div. 2001)(commenting that the process of equitable distribution is not to be a “mechanical division” but determined on a case-by-case basis).
There are certain assets that are excluded from equitable distribution altogether, including property acquired prior to the marriage (“premarital” property), and property received by either party by way of gift from a third party, devise or intestate succession. See N.J.S.A. 2A:34-23(h).
However, property that might originally be classified as exempt from equitable distribution may lose its exempt status in the event one spouse makes an interspousal gift of the property to the other or otherwise “commingles” the property with marital assets. See Wadlow v. Wadlow, 200 N.J. Super. 372 (App. Div. 1985); Dotsko v. Dotsko, 244 N.J. Super. 668 (App. Div. 1990).
Don't Face This Process Alone
As can be seen from the above, there are many nuances to the process of equitable distribution upon divorce. The attorneys at Ziegler, Zemsky & Resnick are well-versed in these laws and can assist you in protecting your interest in the marital estate.
You do not have to face this contentious process without a dedicated advocate by your side. Request a case evaluation with us today.