Are Any of My Assets Protected from Equitable Distribution during Divorce?

One of the most commonly asked questions during any divorce or divorce mediation is “Are any of my assets protected from being divided during my divorce?” Unfortunately, there is no easy answer to this question. Equitable distribution depends on a great many factors specific to each divorce, and you will need to work closely with your Bergen County divorce attorney in order to determine exactly which, if any assets, can be considered exempt from your division of assets agreement.

However, we can provide you with a general understanding of some of the most important determining factors during the equitable distribution process, hopefully which gives you a clearer understanding of what assets you should expect to divide, which assets may be protected, and how and why they are.

Prenuptial Agreements and Asset Division during Bergen County Divorce

The first and most important factor that you and your Bergen County divorce attorney will need to examine is that of an existing marital agreement such as a prenuptial agreement or a postnuptial agreement. While there are circumstances where an existing marital agreement may be contested, generally the terms they outline will be considered legally binding, and will take precedence over standard equitable distribution laws.

Marital agreements are written in order to address the specific scenario of how individual and marital assets such as homes, properties, businesses, investments, retirement accounts, and more will be divided during a divorce. If you have a signed prenuptial or postnuptial agreement in place, you and your attorney will need to carefully examine the terms the agreement contains, which assets it addresses, and how the agreement states that those assets should be handled during the equitable distribution process.

 

Equitable Distribution and Duration of the Marriage, Ridgewood Asset Division Attorneys

Excluding the terms of a potentially existing marital agreement, the next factor that you and your Ridgewood asset division attorney will need to examine is that of the duration of your marriage. While there are no legal standards regarding the exact length of the marriage and how it can affect asset division, this factor can, and often does, play a role.

In the case of a longer duration marriage, you and your spouse will most likely both have made contributions to the upkeep, maintenance, acquisition, and possession of your marital assets. These marital contributions will entitle both parties to the equitable distribution of those assets, regardless of who originally purchased or owned them.

On the other hand, if your marriage lasted for only a short time, it may be possible, with the help of an experienced Ridgewood asset division attorney, to protect certain privately owned assets from the equitable distribution process. You may be able to argue that your spouse has not yet had the opportunity to contribute to the ownership of various assets like a business, a home or property, or a retirement account, and as such is not legally entitled to the equitable distribution of those assets.

Again, there is no set definition of a “longer” or “shorter” duration marriage, and the determination of which, and how it affects your asset division agreement, often depends much upon the skill and arguments of your attorney.

The Commingling of Assets and Asset Division, Hackensack Equitable Distribution Lawyers

Beyond the factors or marital agreements and marital duration, certain specific asset may also be considered exempt from equitable distribution during the division of assets process. These exemptions include things like gifts, inheritances, and properties or retirement accounts owned privately before the marriage. However, these assets are only exempt if and when they have not been commingled into the general marital asset umbrella. The idea of “commingling” refers to when an asset or account is placed into any marital account, somehow contributed to by one spouse or the other, or placed into the names of another spouse or the spouses jointly.

A common example of an exempt asset, and how commingling can affect that exemption, is that of an engagement ring. An engagement ring is given as a gift from one spouse to the other, and as a gift, can be considered exempt from equitable distribution. However, if the gifting party makes a contribution to that ring, be it paying for its maintenance, or enhancing or changing the stone or the setting, than that ring is then considered “commingled”, and as such subject to equitable distribution.

When it comes to things like businesses, retirement accounts, or properties, it can sometimes be the case that the pre-marital value of those assets is subtracted from its current value, and then divided according to this adjusted value. However, it can often be difficult to determine, or prove, what that premarital value actually was. In theses cases, it may be necessary for your Hackensack equitable distribution lawyer to work with forensic accountants and analysts, as they may be able to determine, and prove, said premarital values, and in this way protect a portion of the value of these assets from equitable distribution.

Contact Our Bergen County Divorce and Asset Division Attorneys Today

Considering the great many factors that go into determining when assets are considered “commingled”, the value and premarital values of those assets, and how exactly they should be divided, having an experienced asset division on your side during this process can be of enormous benefit.

At The Law Office of Townsend, Tomaio & Newmark, our attorneys have extensive experience working with clients and financial advisers alike in order to determine the exact values of many different types of assets, and dividing those assets in a way which makes the most sense for our clients in towns across Bergen County, including Hackensack, Ridgewood, and Fort Lee.

By practicing exclusively family and divorce law, our firm can provide each of our clients with the attentive, knowledgeable, and highly effective legal service that they need and deserve in matters so important to their legal, financial, and parental futures. We believe that by listening closely to our client’s unique needs and concerns, and keeping them informed and involved throughout the legal process, we can better work to achieve the results that best meets those specific needs and concerns.

To speak with our family law team today in a free and confidential consultation regarding your divorce, your division of assets agreement, how an existing marital agreement may affect equitable distribution, or which of your assets may be exempt from marital asset division, please contact us online, or through our Hackensack, NJ office at (973) 828-0829.