Q: What property is subject to division in a divorce?
A: New Jersey law requires an equitable distribution of all assets, whether real or personal, acquired during the marriage. In other words, assets acquired between the date of the marriage and the date on which the complaint for divorce was filed are generally subject to division.
Q: Are there exceptions?
A: The statutory exceptions are gifts from third parties (i.e., someone not your spouse) and inheritances. The legislature reasoned that dividing these assets would (1) bestow a windfall on the spouse who was not the recipient of the gift or inheritance since no effort was involved in the acquisition and (2) would defeat the intention of the gift giver or the decedent who clearly intended the asset to go to the designated spouse and not the other.
Q: What is real and personal property?
A: Real property is real estate – the house, commercial real estate, vacant land, a condominium, etc. Personal property is everything else – cash, stock, pots and pans, cars, furniture, etc.
Q: Is a house owned by one spouse prior to the marriage separate property and, thus, not subject to distribution?
A: It depends. Almost certainly, the value of the house at the date of the marriage and any market appreciation on that value is separate property. However, various factors may create a marital asset in a portion of the increased equity that accumulated during the marriage. For example, paying down the mortgage with funds earned during the marriage may create a partial marital estate. Improvements (e.g., an addition, a swimming pool, etc.) may also create a
partial marital asset. As in most areas of family law, the answer depends on the specific facts in each case.
Q: Is a mutual fund that was owned prior to the marriage separate property?
A: If that mutual fund remained separate during the marriage, no marital funds were comingled with it, and no income generated by the fund was relied on to support the family or the marital lifestyle, it probably is. Comingling the fund with marital assets or relying on the income to support the marital lifestyle may change the answer.
Q: Is an engagement ring a marital asset?
A: Generally, no. New Jersey case lase has pretty clearly concluded that an engagement ring (if given in advance of the marriage as they traditionally are) is a premarital, conditional gift. The condition is the marriage. Once the marriage takes place, the condition is met and the gift becomes the recipient’s premarital asset and not subject to the equitable distribution.