What is Equitable Distribution?

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No couple likes to imagine themselves getting a divorce. Unfortunately, couples do get divorced, perhaps now more than ever. However, the emotional stress of a divorce can be further compounded by the financial stress brought about by the equitable distribution process. When you get a divorce without a marital agreement in place, your assets may be distributed equitably. However, equitable does not always mean “equal,” rather, it more closely means, “fair and just in the eyes of the court.” If you are entering the equitable distribution process, here are some of the questions you may have:

Marital Property vs. Separate Property

The courts will first determine which of your assets are considered marital property, and which are considered separate property. Marital property includes the assets you have accumulated throughout your marriage, such as a home. On the other hand, separate property is property owned before or outside of your marriage, such as gifts or inheritance. Generally, separate property is exempt from the equitable distribution process, while marital property is subject to be distributed equitably.

How do courts determine who gets what in a divorce?

Courts will consider several factors, including, though not limited to:

  • Your income
  • Tax consequences
  • You and your spouse’s health
  • Your marital standard of living
  • Whether you need a trust to help cover the cost of reasonably foreseeable medical or educational costs for a child
  • Whether you or your spouse deferred career goals for the benefit of your marriage
  • The value of your property
  • You and your spouse’s earning potential
  • Debts and liabilities
  • Your respective economic circumstances once your assets are divided
  • The length of your marriage
  • Property settlement agreements

Can I protect my assets from a divorce?

In short, the answer is yes. If you and your spouse drafted a prenuptial agreement before you were married, you may lay out in writing exactly what will happen with your assets should you get a divorce. This is a legally enforceable document designed to protect your assets in a divorce. However, if you are already married and have not drafted a prenuptial agreement, you may still draft a postnuptial agreement, which essentially serves the same purpose as a prenuptial agreement, though it is drafted after you are already married. If you and your spouse jointly own a business, you may also draft a shareholder agreement, which can eliminate any future business disputes brought on by a potential divorce.

Contact our experienced Bergen County firm

At Townsend, Tomaio & Newmark, our attorneys have extensive experience helping clients to understand and protect their legal rights before, during, and after the divorce process in towns across New Jersey and Bergen County, including Hackensack, Ridgewood, Paramus, Teaneck, and Fort Lee.

To speak with our team of divorce lawyers today in a free and confidential consultation regarding your concerns about moving out of your marital home during your divorce, please contact us online, or through our Hackensack, NJ office at (201) 397-1750.

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