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How Is Property Divided in a Divorce?

How Is Property Divided in a Divorce

New Jersey is an “equitable distribution” state, which means that property is not always divided equally in divorce. Rather, a court divides property equitably according to their evaluation of the marital property.

It is important to understand how property division works in divorce in New Jersey. An experienced Rosenblum divorce attorney can provide guidance on how property may be divided in a divorce. In the meantime, here is what you need to know.

Understanding Property Division in New Jersey

Property division in New Jersey is guided by state law and is based on the principle of equitable distribution. Equitable distribution does not necessarily mean a 50/50 split of property. Instead, it means that the division of property should allow both parties to maintain, as closely as possible, the same standard of living they had during their marriage. The courts will use a 3-step process to determine how to proceed with the equitable distribution: 

  1. Deciding what property can be considered marital property 
  2. Determining the value of the marital property 
  3. Calculating an equitable division based on that value

There are two types of property divided in divorce defined in Section 2A-34-23h of the state code: marital and nonmarital. Marital property is property that was obtained during the marriage. This might include the family home, cars, and other personal or real property obtained after the date of marriage. 

Nonmarital property is property that was owned by, gifted to, or inherited by one party before the marriage. For example, a vehicle given as a gift to the wife by her father would remain with the wife.

New Jersey state code Section 2A-34-23.1 lays out the factors that are to be considered when dividing marital property. These include:

  • The duration of the marriage
  • The age and physical and emotional health of the parties
  • The income or property brought by each party to the marriage
  • The standard of living established during the marriage
  • Prenuptial or postnuptial agreements
  • The economic circumstances of each party at the time of divorce
  • The income and earning capacity of each party
  • The contribution by each party to the education or earning power of the other
  • Tax consequences of property division
  • Present value of the property
  • The need for the marital home by the party retaining physical custody of a child
  • The debts and liabilities of the parties

New Jersey courts may consider other matters as well. An attorney can best determine the factors that could affect property division in divorce.

Role of an Attorney in Property Division

It is important to have an experienced New Jersey divorce attorney who can assist in the process of the property division.  An attorney can best determine the value and factors affecting division of property in New Jersey. Here are a few of the ways that an attorney can help.

Legal Strategy and Negotiation

Developing a legal strategy is of the utmost importance in property division, especially when complex assets are involved. Determining the appropriate legal strategy to protect the client’s priorities and rights is one of the primary roles of an attorney in property division.

Negotiations are also a key element of property division cases. An attorney can negotiate with the other party’s attorney to come to a fair settlement. 

Valuation of assets

Accurate valuation and categorization of assets is vital for equitable property distribution. An attorney can provide expert appraisal and valuation of assets, and determine if they are marital or non-marital property.

Understanding tax implications

Tax implications can change the way that property is divided. Property division can also affect things like credit scores.

Protecting business interests

If you own a business, having an attorney on your side to protect business interests and assets is vital. An attorney can provide strategies to divide business assets without harming the company.

Retirement accounts and pensions

Navigating retirement accounts and pensions in property division in New Jersey divorce can be complicated. To protect the rights of one spouse to retirement benefits when they are at last received, one must request a Qualified Domestic Relations Order (QDRO) from the court. This order entitles one spouse to all or part of retirement benefits when they are received by the other spouse. An attorney can determine if a QDRO is appropriate, and the terms.

Real estate and mortgages

An attorney can handle delicate matters such as the distribution of the marital home and other real estate property. The attorney will also negotiate terms such as financing, insurance, and mortgages, and who will be responsible for them. This is an important part of property division, and many people do not think about all of the expenses that can be attached to real property.

Litigation support

If a property settlement cannot be reached, these matters are addressed during the divorce trial. Having an attorney to represent you during litigation is the best way to protect your interests and ensure an equitable outcome.

Special Considerations

Some divorces are more complex than others and require the attention of an experienced attorney. For example, high-net-worth divorces require more effort to separate marital and nonmarital assets, as well as to ensure that all assets are accounted for. Offshore accounts and stock options can be especially difficult to evaluate and divide. 

Prenuptial and postnuptial agreements, or legal contracts where couples agree to financial rights and responsibilities in divorce or death, can simplify the divorce process by avoiding disagreement. However, in certain circumstances these agreements can also make property division more complicated. While these agreements are generally upheld by the courts as long as they meet certain requirements, they don’t always encompass all of the assets and property that need to be divided. If the agreement is not upheld by the court, property is divided as though the agreement didn’t exist. Differing circumstances involved in property division make each divorce case unique, so it is important to have the guidance of an attorney when going through this process.

The Process of Property Division in Divorce Proceedings

There are four steps involved in the division of property in a New Jersey divorce. 

  1. Discovery: Gathering financial data and evidence of property and assets owned by both parties.
  2. Negotiation: Attempting to reach a property division agreement.
  3. Mediation/Arbitration: Alternative methods of coming to a property division agreement.
  4. Trial: The final way to resolve any remaining property disputes.

It is best, and cheapest, to come to an agreement during negotiations or use alternative methods such as mediation and arbitration. Trials can be messy, emotional, and costly. If you come to an agreement without going to trial, the courts must approve it before the divorce is finalized.


Who has to leave the house in a divorce in New Jersey?

In New Jersey, both spouses have equal rights to live in the family home until the divorce is finalized and it is determined which spouse will remain there. Although one spouse may decide to move out before that, they are not obligated to do so.

Can my spouse take my house if I bought it before marriage in New Jersey?

Property that was acquired before the marriage is separate property and not subject to equitable distribution. Therefore, if you bought the house before you got married and your spouse is not on the deed, you will likely be able to keep the house after the divorce. 

Are gifts considered marital property in New Jersey?

Gifts given to just one spouse are separate property and not subject to equitable distribution. Any gifts one spouse received stay with that spouse.

What are my rights if my name is not on the deed in New Jersey?

If your name is not on the deed to the marital home, you may still have rights to the home if it was acquired after the marriage. The home is then considered marital property. However, if the home was owned by your spouse before you were married and your name is not on the deed, you likely have no rights to it. 

Can I appeal a property division decision in NJ?

Yes, if the law was not applied correctly in a property division decision, you can appeal. The outcome is not likely to be favorable if you simply didn’t like it. An attorney can advise you on the chances of modification through appeal.

Are retirement accounts and pensions subject to division?

Yes, all assets gained during the marriage are subject to division. These matters can be complex if the retirement account or pension was created before the marriage but grew during the marriage. An attorney can best determine how retirement accounts and pensions may be divided in a divorce. 

If a divorce is filed as a fault-based divorce, will this affect property division?

No. A fault-based divorce such as one based on adultery does not affect property division. New Jersey law requires equitable distribution to be applied in all divorce cases, regardless of the grounds for divorce.

Call a Rosenblum Attorney Today

Navigating the complexities of property division in a New Jersey divorce can be challenging, overwhelming, and worrisome. To alleviate your worries and the time-consuming matters involved in this process, speak to an attorney from Rosenblum Law. Our experienced divorce attorneys are here to guide you through every step of the process, ensuring that your rights are protected and that you receive a fair and equitable division of assets. Contact us today for a free consultation to discuss your case and to learn how we can effectively assist you.

How Is Property Divided in a Divorce
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