It is a common misconception that upon divorce the parties will equally divide all of the property, regardless of who acquired it and in which party’s name the property is titled. However, in New Jersey equitable distribution does not automatically mean half. N.J.S.A 2A:34-23 is the statue that governs equitable distribution. Pursuant to this statute, the courts are to consider various factors prior to making an award of equitable distribution. It is more important to ensure that the distribution of property is fair rather than to have it simply split down the middle. While the analysis may begin with a 50/50 division, it does not always end there. This makes New Jersey different from other states, such as California, where 50/50 is an automatic proposition.
There are some assets for which strong arguments can be made for a less than equal division, such as business interests and certain employer-provided benefits. As with any asset subject to equitable distribution, these must be analyzed using the factors set forth in N.J.S.A. 2A: 34-23 to determine the percentage to which each spouse will be entitled. If one spouse worked tirelessly to build a business, while the other spouse contributed nothing, New Jersey precedent does not support the non-contributing spouse getting an automatic award of half. After all, such a result may not be equitable.
It is also important to note that not all property is subject to equitable distribution. As such, the concept that your soon-to-be ex spouse will get half of EVERYTHING is unsupported by the law. Certain types of property, such as property that was acquired by one spouse before the marriage, gifts and inheritance, are not subject to equitable distribution under most circumstances. There are exceptions to this exemption, which you should discuss with an experienced family law attorney. Posted by Robyn E. Ross, Esq.