The Kerr Law Group, L.L.C., located in Toms River, New Jersey, serves clients in all divorce matters involving equitable distribution in Ocean County and Monmouth County.
Equitable Distribution N.J.S.A. 2A:34-23.1:
New Jersey is an Equitable Distribution State. It is not a community property state like California. In New Jersey relevant dates for determining the assets and liabilities subject to equitable distribution are the dates of marriage and the date the complaint for divorce is filed. Assets acquired during the marriage are subject to equitable distribution. The only exception to this is:
Assets which are pre-marital;
Inheritances received by the one party during the marriage;
Gifts from third parties.
Equitable distribution is determined by the statute’s following factors:
- The duration of the marriage;
- Age, physical, and emotional health of the parties;
- Income and property brought into the marriage by each party;
- The standard of living established during the marriage;
- Any written agreements made by the parties before or during the marriage concerning an arrangement of property distribution;
- Economic circumstances of each party at the time the division of property becomes effective;
- The income and earning capacity of each party;
- The contribution by each party to the education, training or earning capability of the other;
- The contribution by each party of the acquisition, dissipation, depreciation of the value of the marital property, as well as the contribution of the party as the homemaker;
- The tax consequences of the proposed distribution to each party;
- The present value of the property;
- Need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects;
- The debts and liabilities of the parties;
- The need for creation of a trust fund to secure reasonable medical and educational costs for a spouse of child;
- Any other factors that the court may deem relevant.
Although in each case the court is supposed to make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility, asset valuation, and equitable distribution including specifically what is set forth above, it is rarely done. If there is a rebuttal presumption that each party made a substantial financial or non-financial contribution to the acquisition of income and property while that party was married, one is to spend the time reading each case that analyzed equitable distribution. Each case would specifically review the aforementioned factors. However, that is rarely done. The courts cannot have each asset valued and the assets and liabilities distributed equally. The courts question why this case is not a 50-50 case. Unless there are severe extenuating circumstances, all the assets and liabilities of the marriage will be divided equally.
The issue becomes the value of the assets. This is especially true in cases when one spouse owns (or has an ownership interest in) a business. It becomes difficult and extremely important to determine the exact value of the ownership interest.
The other main problem in determining assets for equitable distribution occurs when the value of the asset has changed from the time the divorce was filed to the time the assets are separated. In the case of stocks that appreciate or depreciate as a result of market conditions, the court looks to divide those assets in kind. (This means that if there are 422 shares, each party will receive 211 shares.)
Another asset that is difficult to evaluate are the retirement assets. There are two main categories of retirement assets:
* A defined benefit plan. In these plans, the amount the participant will receive at retirement is determined in advance.
* A defined contribution plan. In these plans, the plan participant determines in advance how much will be contributed to his or her retirement accountant. The amount of the benefit at retirement is, however, unknown. The amount of savings will depend on the success of the participant’s investments. Employer responsive plans such as 401k’s and profit sharing plans are defined contribution plans. In many cases the retirement plans are distributed using a qualified domestic relations order commonly referred to as QDRO. A QDRO is used to divide a retirement plan between the spouses to avoid tax consequences. It is a court order that requires an employer (or plan administrator) to transfer the employee’s plan assets to a spouse.
If you have been married for 10 or more years you have the right to plan on social security retirement benefits based on your spouse’s work records.
If you have any questions or concerns regarding distribution of assets, please contact us today for a consultation.