Property Division Attorneys in Somerset County
Guidance from Skilled Divorce Lawyers
When two people are getting divorced, the Court is required to divide their assets and debts between them. This process is known as “equitable distribution,” because it is a distribution of assets and debts and the Court is free to divide that property in any way it finds equitable.
If you are facing the process of asset and debt division, then turn to the family law and divorce team at DeTommaso Law Group. Our property division attorneys in Somerset County have extensive experience helping divorcing partners navigate this tough and often contentious dispute.
Call us at (908) 274-3028 or contact us online to request a free consultation with our family lawyers.
It is important to remember that the Court can divide assets and debts of either or both parties, meaning that regardless of who “legally” owns the property, or is listed as the responsible party on the debt, the Court can assign the asset or debt to either or both spouses.
For example, even if a credit card debt is entirely in your spouse’s name, the Court can require both parties to pay off that debt or even assign that debt entirely to you. This might be done if the Court determines that the spouse used the card, despite it being in his or her name alone, to purchase groceries for the entire family.
Even so, just because the Court can equitably distribute an asset does not mean that the Court will distribute that asset. Courts are given broad discretion to determine what is fair in any given situation.
Active Vs. Passive Assets
In community property states, all assets are divided equally. Equitable distribution states, on the other hand, permit the Court to divide the divorcing parties’ assets in any manner deemed fair and equitable; this may mean in some other fashion than 50/50. The process is, of course, quite complicated and subject to a number of rules set forth by statute and in various cases.
One key concept of inequitable distribution is the difference between active and passive asset appreciation.
- Active appreciation occurs when an asset increases in value based on someone’s hard work. For example, if you build a hotel on a piece of property, the appreciation that results is active.
- Passive appreciation occurs when an asset increase in value without any effort from the parties. For example, if you own stocks, those stocks may increase in the value of their own accord.
Generally, active appreciation in the value of a premarital asset is subject to equitable distribution, but passive appreciation is not.
The Three-Step Distribution Process
In virtually all examples of equitable distribution, the Court must go through the following three-step process.
Determine What Property Is Eligible for Equitable Distribution
The equitable distribution statute states that a Court may divide property acquired during the marriage. Virtually all property acquired during the marriage is included for consideration, including future interests (such as pensions) and intangible assets (such as trademarks or patents).
The Court will only equitably distribute assets acquired “during the marriage.” The marriage is generally thought to begin on the date of the marriage ceremony. Assets acquired prior to the marriage ceremony are generally considered unavailable for equitable distribution purposes. There are, of course, certain exceptions to this rule. For example, if one spouse owned a business prior to the marriage that significantly increased in value during the marriage, the Court will attempt to value the growth in the business’s value and equitably distribute the growth in value.
Courts have held that the date a marriage terminates, for equitable distribution purposes, is the day on which a Complaint for Divorce was filed. That rule, though, is not necessarily hard and fast. In certain situations, the Court may refuse to consider assets acquired prior to the filing of a Complaint (such as where a separation agreement was entered prior to a Complaint for Divorce being filed). In others, the Court may consider some post-Complaint assets. Further, the Court is free to correct any unfairness that results from strict application of the rule.
There are certain important exceptions to assets subject to equitable distribution, including assets obtained by “gift, devise, or intestate succession.” Anything that you received as a gift or through an inheritance will generally be excluded from equitable distribution.
Determine the Value of the Eligible Property
Valuation of assets can be the most difficult task in divorce cases. The Court may be presented with conflicting accounts of the underlying facts, directly opposed testimony from financial experts, and a number of seemingly reasonable outcomes. The Court’s ability to effectively evaluate varying claims as to valuation may depend on the individual judge’s business and financial expertise.
At DeTommaso Law Group, we work closely with a network of trusted financial professionals and fight to ensure that you receive every dime to which you are entitled.
Decide the Actual Division of Property
When determining who will get what, the courts will consider:
- a. The duration of the marriage or civil union;
- b. The age and physical and emotional health of the parties;
- c. The income or property brought to the marriage or civil union by each party;
- d. The standard of living established during the marriage or civil union;
- e. Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;
- f. The economic circumstances of each party at the time the division of property becomes effective;
- g. The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage or civil union;
- h. The contribution by each party to the education, training or earning power of the other;
- i. The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;
- j. The tax consequences of the proposed distribution to each party;
- k. The present value of the property;
- l. The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;
- m. The debts and liabilities of the parties;
- n. The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;
- o. The extent to which a party deferred achieving their career goals; and
- p. Any other factors which the court may deem relevant.
This list is not exhaustive. The Court is free to consider any fact or circumstance that it finds relevant to the fairness of its award. Nevertheless, a substantial body of case law has developed as to each of the factors listed above, and we strongly recommend that you consult with a qualified Somerset County divorce attorney where there are substantial assets involved.
Amending Equitable Distribution
It is important to remember that, unlike alimony, equitable distribution cannot be changed after the fact as a result of “changed circumstances.” Keep this in mind during negotiations. Once a deal is struck, the Court may not allow you to revisit the issue in the future.
Ready to get started on your case? Seek representation from DeTommaso Law Group. Call (908) 274-3028 now.