Who gets the house in a divorce is often one of the most contentious issues of the property division process. In this blog, we discuss equitable distribution laws and ways that the home can be divided.
New Jersey Is an Equitable Distribution
Equitable distribution in a divorce refers to the legal principle followed by many states, including New Jersey, when dividing marital property between divorcing or separating parties. Unlike equal distribution, which mandates a 50-50 split of assets, equitable distribution focuses on achieving a fair division based on various factors. This means that the court will evaluate these factors and determine a distribution that it deems fair based on the unique circumstances of the case.
According to New Jersey Revised Statutes Section 2A:34-23.1, the court considers various factors when making an equitable distribution of property, such as:
the duration of the marriage,
each party's contribution to the acquisition of assets,
each party’s age and health,
either party’s contributions as a homemaker,
the tax consequences each spouse may face because of the division,
each spouse’s contributions to the other party’s education and earning potential,
each party’s debts and liabilities,
each party’s financial situation following the divorce,
the income and earning capacity of each party,
the standard of living established during the marriage, and
any other factors deemed relevant by the court.
Is Your House Marital or Separate Property?
The first step in determining who gets certain property, including your home, involves identifying whether assets are separate or marital. Marital property refers to assets acquired by both spouses during the course of the marriage.
This includes property obtained jointly or individually, such as real estate, bank accounts, investments, vehicles, and personal belongings. On the other hand, separate property comprises assets owned by an individual spouse prior to the marriage or acquired through inheritance, gifts, or personal injury settlements.
When Separate Property Can Become Marital Property
In some cases, property that spouses acquired prior to the marriage is commingled. When separate property becomes commingled, it may be treated as marital property and subject to division between the spouses.
The division of commingled assets can depend on various factors, including the laws of the jurisdiction, the intent of the parties involved, and the length of the marriage. Courts may consider factors such as the proportion of separate property involved, the efforts made to keep it separate, and the contributions of both spouses during the marriage.
Ways separate property can become commingled include:
Intermingling of funds. One common way separate property can become commingled is when funds from both marital and separate accounts are combined. For example, if a spouse deposits their inheritance into a joint bank account or uses it for marital expenses, it may be difficult to distinguish between separate and marital assets.
Joint ownership. Another scenario where commingling occurs is when separate property is jointly owned by both spouses. For instance, if a pre-marital property is titled jointly or a spouse's name is added to the title of an inherited property, it may lose its separate status.
Improper record-keeping. Poor documentation and record-keeping can also lead to commingling. Failing to maintain clear records of transactions involving separate property can make it challenging to trace and establish their separate status.
Dividing Marital Property in NJ | Who Gets the House?
Once your property has been classified as marital, separate, or commingled, you will also need to assess the value of all the property. While it may be easy to value assets like bank accounts, your home should be appraised by a professional.
Spouses can agree on the division of assets and decide who keeps the home and other assets. You can have a standalone agreement concerning property division or an agreement that is a part of your entire divorce settlement agreement (if you plan to file uncontested).
To fairly divide a home, you can consider the following:
Selling the home. You can split the profit from the home sale.
Buying out the other party. You can buy out your spouse’s share of the home’s equity to gain full ownership of the property.
Owning the property jointly. You can agree to jointly own the property and share in profits from renting the home.
Dividing the home can become complicated if you have minor children. In many cases, the custodial parent may wish to stay in the home to avoid uprooting the kids.
Couples in this situation often opt for the buyout or joint ownership option. If buying out the other party isn’t possible, the couple can agree to co-own the property until their children reach a certain age.
If a couple cannot agree on property division, a judge will decide who gets the house and other marital assets. The court will consider the circumstances of the case, as well as the aforementioned factors for determining equitable distribution.
Discuss Your Case with Our Attorneys
At William Kirby Law, Family Law Attorneys, our divorce attorneys offer our clients zealous representation and sound legal counsel. If you are getting divorced in New Jersey, our team can help you make informed decisions and fight to maintain ownership of your home. Whether you need help negotiating with your spouse or presenting your case to a judge, you can trust us with your divorce and property division case.
Call (215) 515-9901 to speak with our legal team and get started on your case.