What Am I Entitled to in a New Jersey Divorce? What to Know

Key Takeaways

Marital property is split equitably, not 50/50, under N.J.S.A. 2A:34-23.1.
Property owned before marriage stays separate unless commingled.
Courts weigh 16 factors, including marriage length and income.
Open durational alimony applies only to marriages of 20-plus years.
Child support follows Rule 5:6A guidelines.

When a couple gets married, they combine certain assets. So, if they are getting divorced, what happens to their shared assets? Many people wonder what they are entitled to in their divorce. Read on to learn more about equitable division in New Jersey and what you are entitled to in your divorce. In New Jersey, a divorcing couple is entitled to an equitable distribution of their shared marital assets. In accordance with N.J.S.A. 2A:34-23.1, the courts will consider the division of assets with the 16 factors listed in the statute, though separate assets will remain the separate property of the spouse who owns them.

Marital Property vs. Separate Property

One of the most important things to know is the difference between marital and separate property. Throughout the duration of a marriage, couples share a variety of assets. These are put into two different categories in a divorce case: marital property and separate property.

Marital property consists of the assets the couple acquired throughout their marriage. This can include real estate, cars, income, certain retirement or pension accounts, and more.
Separate property consists of assets that were obtained by either party before the marriage. This can include separate bank accounts, gifts, inheritances, and more. Separate property is usually untouched during a divorce. However, marital property is subject to equitable distribution.

Two Rules That Decide What Counts as Separate

The filing-date cutoff: New Jersey adheres to the date on which the divorce was filed to determine which assets were determined to be marital or separate.
Commingling erases the line: Separate property loses its protected status when it is commingled with marital assets, such as depositing separately held assets into a joint account, or if the other spouse contributes to the maintenance or increase in value for the property.

What is Equitable Distribution?

Equitable does not mean “equal.” Your assets will be divided in a way that is fair to both parties. Contrary to popular belief, your assets may not be split 50/50. If you take your divorce to court, the court will examine a number of factors in order to determine how your assets should be divided.

What is Considered When Distributing Assets?

New Jersey courts consider a variety of different aspects about both spouses during a divorce in order to determine what is equitable. This can include the following:

Age
Health
Property value
Yearly income
The established financial standard of living in the marriage
The terms of any existing child custody agreement

Additional Statutory Factors Under N.J.S.A. 2A:34-23.1

Duration of the marriage: Typically, marriages that last longer tend to have a more equal split.
Contribution as a homemaker: In addition to financial contributions, domestic contributions like raising children and managing a household will be taken into consideration when determining marital property.
Deferred career goals: If one spouse put their career on hold to support the other, this will be taken into consideration by the courts.
Debts and tax consequences: In addition to assets, the court will also consider and distribute debts and liabilities, though the court will also take the tax consequences of these matters into consideration.

Alimony & Child Support

In some cases, you will be entitled to receive alimony and/or child support. Alimony is dependent upon a number of factors, including the length of the marriage and the financial situation of each party. Child support is taken very seriously in New Jersey. Child support will be determined by things like both parents’ income, the standard of living for the child, and more.

Alimony Types and Duration Limits (2014 Reform)

Open durational alimony: In a 2014 reform, “permanent alimony” was replaced with open durational alimony, which is only available for marriages lasting 20 years or longer
The under-20-year cap: For any marriage under 20 years, alimony generally cannot last longer than the marriage itself — a 10-year marriage generally caps at 10 years.
Retirement presumption: There is a presumption that alimony will end when the paying spouse reaches full retirement age, in accordance with Social Security.

How Child Support Is Actually Calculated

Governed by Rule 5:6A: New Jersey Court Rule 5:6A and Appendix IX make the Child Support Guidelines a rebuttable presumption, deviated from only for good cause.
Peripheral costs are extra: Certain expenses, like braces, daycare, and school supplies, are typically not included in the base Guideline, and instead may be added in addition to the standard expenses.

How Can I Protect My Assets?

One of the best ways to protect your assets is by creating a prenuptial or postnuptial agreement. A prenuptial agreement will allow you to declare how your assets will be divided in the event that marriage ends as a result of death, divorce, or separation. If you have certain assets you wish to protect, you can list them in your prenup. A postnuptial agreement is the same document, but it is created after the marriage, rather than before.

Settling Instead of Going to Trial

When you and your spouse are able to reach a settlement agreement, it means you and your spouse have agreed on the terms and conditions of your divorce agreement, including the division of assets. This means the court does not need to make these decisions, ultimately making the outcome of the divorce more predictable. If you are getting divorced and you are wondering what you are entitled to, contact our firm to speak with an experienced attorney.