At The Law Office of Jennifer J. McCaskill, LLC, located in Red Bank, we have guided hundreds of husbands and wives through their divorce in Monmouth County and adjoining counties in northeast New Jersey. One of the hot-button issues we often have to explain involves pension sharing orders and the equitable division of marital property, including retirement assets.
We know these are emotional and frustrating times. We are a team of compassionate Monmouth County equitable distribution lawyers who have helped clients through the difficult process of divorce. We have counseled many of our clients regarding issues that pertain to their marital property, as well as other divorce and family law matters in New Jersey. During our dedicated decade of service, we have strived to build relationships with our clients based on honesty and integrity.
Even when the dissolution of the relationship is amicable and no children are involved, the division of assets and other property can be a surprisingly time-consuming, overwhelming, and costly process. When it comes to the equitable distribution of marital property, it is important to understand what the courts mean when they say marital property.
Generally speaking, property acquired during the course of a marriage is referred to as “marital property.” This means that any property owned by one spouse prior to the marriage, or purchased after the marriage, is excluded from marital property, and is instead called “separate property.” In a divorce, separate property is kept separate from the distribution of assets. Marital property, on the other hand, must be distributed equitably. But how do courts determine what is considered equitable?
Equitable Distribution of Marital Property in NJ
If you are thinking about getting a divorce in New Jersey, there are a few things you need to understand about the laws in this state. The first thing you need to understand is you are not going to leave your spouse with nothing while you live like the Kardashians. New Jersey is an equitable distribution state, which means all marital property is split up between both parties.
Whether the marital property (and debt) is titled only in the name of one party or both has no bearing. That includes pensions and retirement savings. What matters is when and how the property was acquired. If you have questions about which of your assets are considered marital property, speak with a Monmouth County equitable distribution lawyer at The Law Office of Jennifer J. McCaskill today.
What Factors Influence How Assets and Property Are Divided in NJ During Divorce?
In New Jersey, assets are distributed in a manner that is deemed to be fair and reasonable, which may or may not translate to a 50/50 split. For example, if one parent stays home with the children while the other parent earns income, NJ courts will consider the contribution of the stay-at-home parent, even though they may not have contributed financially to the purchase of marital property. When determining an equitable distribution, the courts will look at the following factors:
Duration of the marriage;
Income of each spouse;
Each spouse’s earning capacity;
Debts and liabilities of each spouse;
The standard of living established during the marriage;
Age of each spouse;
Physical and emotional health of each spouse;
The contribution of each spouse to the marital property in question (as explained above in the example of the stay-at-home parent, this contribution does not have to be financial); and
Written agreements created during or before the marriage, such as a prenuptial agreement.
Once the court has considered the factors above, it will proceed in the following manner to complete an equitable distribution of marital property.
Step 1: Determine which assets qualify as marital property.
Step 2: Determine the value of these assets.
Step 3: Calculate how to equitably divide these assets.
Whether you have significant assets or you are simply determining how to distribute equity in the family home, it is in your best interest to consult with a Monmouth County equitable distribution attorney prior to finalizing the divorce process.
Although the information above provides a guideline to asset distribution in NJ divorce, other factors may be considered. When it comes to divorce, deviations from state guidelines are always a possibility. A NJ divorce lawyer can help you protect your rights, your emotional wellbeing, and your wallet during this challenging time. Contact the Law Office of Jennifer J. McCaskill, LLC at 732-747-1882 today for a confidential consultation about your case.
Can Marital Fault Impact Your Marital Property Division?
You may be angry if your spouse has wronged you in some way but it’s important to understand this: nine times out of 10, the court does not care who is at fault. The very narrow exception is when substantial marital assets were spent on an affair. Otherwise, all marital property will be divided fairly and equitably between the parties. What’s “fair and equitable” is up to a judge or the parties to work out. That is why it is important to have an experienced Monmouth County equitable distribution lawyer vouching for you.
Is My Spouse Entitled to My Retirement Assets?
Issues revolving around pensions and divorce can cause a lot of animosity between the spouses. Most people don’t consider pension and retirement plans assets, however, they are. In many cases, the spouse worked a full-time job plus overtime and doesn’t believe their homemaker spouse should be entitled to any of their pension or retirement. Under New Jersey law, though, any assets accumulated during a marriage are considered to be “marital property” which means it is subject to division between the parties.
Although your retirement or your pension plan is an asset, it does not necessarily mean your spouse automatically gets half of everything you have accumulated throughout the years. Your spouse is only entitled to receive one-half of what was accrued during the course of the marriage, which means acquired from the date of marriage through the date of the filing of the Complaint for Divorce. Any previous retirement savings you brought into the marriage may remain classified as separate assets, unless you commingled (combined) them with your spouse’s in order to increase investment earnings.
To be clear: Any retirement or pension accumulated from the day you got married to the day divorce papers were filed will be classified as “marital property” and subject to equitable distribution.
NEW JERSEY PRENUPTIAL AGREEMENTS
A prenuptial agreement—often referred to as a prenup—is a premarital agreement that addresses issues that frequently arise in divorce, including the division of marital property. A well-drafted prenuptial agreement can be the best way to prevent disputes over asset distribution in the event of divorce. In fact, dealing with the division of assets and property is generally the primary focus of this premarital agreement. While a prenup can address other potential issues, one thing it cannot impact in the state of New Jersey is child support.
To be legally enforceable, the prenup must be in writing and signed by both parties. Although prenups are drafted prior to the marriage, they can be modified over the course of the marriage, provided modifications follow any formalities set forth in the original agreement and are in compliance with NJ law.
We Didn’t Hatch From an Egg — We Totally Get Your Frustration
You are worried about your financial future. We totally get why you feel frustrated and feel like your spouse should not be entitled to half of your retirement. Like you, we have been placed in situations we thought were unfair during our lives. But as equitable distribution lawyers, we have learned to accept the law for what it currently is and will help you get through these challenging times with an eye on keeping your stress level manageable.
Equitable Distribution Attorneys Who Understand How High the Stakes Are
If you do not want to get screwed over in your divorce, it is important to have a lawyer who will protect you. At The Law Office of Jennifer J. McCaskill, LLC we have more than 15 years of experience working with people during divorce and other family law issues. When there are disagreements about marital and separate property, we provide trained mediation to help resolve them. In the event the case must go to trial, you will have an experienced Monmouth County equitable distribution lawyer on your side in court.
Our attorneys know how stressful a divorce can be, and we treat each client with compassion and the dignity and respect they deserve. We strive to build relationships with our clients because we want to make sure they are comfortable asking questions or discussing any concerns they have. Our main goal is to protect the rights of our clients as we guide them through the process of divorce.