A major part of divorce is how courts will divide shared property between spouses. Since houses are usually the largest, they’re one of the most important assets to understand. Here are some questions you may have about this:
How Will NJ Courts Decide Who Gets to Keep the House in a Divorce?
Courts will consider many different factors when deciding which spouse keeps the home, including the:
- Length of the marriage
- Age and physical/emotional health of each spouse
- Financial contributions to the marriage by each spouse
- Standard of living during the marriage
- Income and earning capacity of each spouse
- Contributions of each spouse to the property (financially or domestically)
- Debts and liabilities of each spouse
- Financial dependence of each spouse
- Physical child custody
- Any other factors the court views as relevant
By law, the court also has to observe other relevant circumstances. For example, when judges go through the equitable distribution process (defined below), they have to consider if one spouse delayed education or job opportunities because of the marriage. Judges know that marriage doesn’t always involve equal economic contribution to the expenses of the home, so they have to look at these kinds of issues under the state statute 2A:34-23.1.
What Does “Equitable Distribution” Mean in NJ?
NJ is an equitable distribution state, meaning that courts try to divide assets in a fair and just way. But equitable distribution doesn’t always mean an equal 50-50 split.
Each spouse isn’t guaranteed to receive a property he or she feels entitled to, which can complicate how quickly and effectively a divorce can be filed and completed. So, the role of divorce lawyers in this process is to argue—citing traits like “separate/exempt” or “marital” property (defined below)—to the judge that one spouse should have legal ownership of the home over the other.
What Is the Difference Between “Separate/Exempt Property” and “Marital Property” in NJ?
Divorce courts commonly observe whether the house is separate/exempt or marital property.
Separate/Exempt property means that the house belonged to one spouse prior to marriage. Usually, separate/exempt properties can’t be divided in the divorce process.
Marital property means that both spouses acquired the house together. Since it is shared property, marital property can be divided in the divorce process. This means that even if only one spouse is named on the deed or has funded the down payment, that doesn’t eliminate the other spouse from getting the house. So, if the property is marital, both spouses have equal rights to the house.
What Does “Financial Dependence” Mean in a NJ Divorce?
Financial dependence refers to one spouse relying on the income and money from the other spouse. In many cases, the financially dependent spouse gets the house. But this doesn’t always happen, since courts also have to consider other factors previously listed in this post, such as child custody agreements and standard of living.
While divorce may be overwhelming, please know that you are not alone. We have many other posts on divorce, such as how to figure out if your situation calls for fault or no-fault divorce, if you should file for annulment instead of divorce, and if you can start dating someone else in the middle of a divorce.
If you are researching divorce matters in New Jersey, you can schedule a free consultation with an experienced family law attorney at 973-922-1035 from Maria A. Giammona Law. We have been providing caring and compassionate representation for family law matters in Totowa, Wayne, West Milford, Woodland Park and throughout Passaic County for over 20 years. We’ll look at every aspect of your situation and help you determine the best strategy for your family.