Own a home and tied the knot? What you need to know to in the event of a divorce.
Unfortunately, it is estimated that 50% of marriages end up in divorce in the United States. Many divorcing couples may find themselves facing issues in determining an equitable resolution to the division of their marital residence. Under New Jersey statute, N.J.S.A. 2A:34-23.1, the equitable distribution criteria a New Jersey Court will consider is:
- The duration of the marriage or civil union;
- The age and physical and emotional health of the parties;
- The income or property brought to the marriage or civil union by each party;
- The standard of living established during the marriage or civil union;
- Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;
- The economic circumstances of each party at the time the division of property becomes effective;
- The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage or civil union;
- The contribution by each party to the education, training or earning power of the other;
- The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;
- The tax consequences of the proposed distribution to each party;
- The present value of the property;
- The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;
- The debts and liabilities of the parties;
- The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;
- The extent to which a party deferred achieving their career goals; and
- Any other factors which the court may deem relevant.
The goal of this statute is to create an equitable division of assets, but equitable does not always mean equal. A married couple takes title (ownership interest) to a home as tenants by the entirety; however, upon divorce the tenancy automatically converts to tenants in common. As tenants in common, each spouse owns an individual, undivided fractional interest in the real property and have equal right to possess the entire property.
If a divorce commences, it is inevitable that the couple must determine what to do with a mutual home. First, the home must be determined to be a marital or non-marital asset. A home will generally be classified as marital if it is acquired during the marriage, or in some instances when it is acquired in contemplation of the marriage, even if purchased prior to the marriage. Once identified as a marital property, the home will be eligible for equitable distribution. In order to determine the amount to be distributed to each spouse, the home must be valued. When a home holds equity, in many instances, the home is either sold or one spouse agrees to buy-out the other’s share of ownership in the home. Both options have a financial impact both during and after the divorce. As a result, it is wise to contact an experienced family law and/or real estate attorney to provide you with a professional opinion.
If you have any questions about the legalities of your divorce and/or real estate, CLICK HERE TO CONTACT Mattleman, Weinroth & Miller, P.C.
The law firm of Mattleman, Weinroth & Miller, P.C., is composed of experienced attorneys throughout the states of New Jersey and Delaware. Please contact the office for a free initial consultation and get any questions answered regarding your specific case.