Division of Property

This is usually an important and difficult question. If the mortgage is in both parties’ names, then whichever spouse assumes the marital home following a divorce will have to refinance the home solely in the name of that spouse. Often times, particularly in the present economy, it is difficult for one or the other spouse to be able to refinance the mortgage or loan in his or her name. If neither party can afford to assume control of the marital home by themselves, then the court will often order the marital home sold, and any proceeds or debt split evenly between the parties. If there are children involved, then generally whoever is to be taking care of the children primarily will have first priority to the marital home.

The date of separation refers to the date one spouse manifests to the other spouse that he or she no longer wants to be married. Then, the parties must live as though they are unmarried. Usually, the date of separation is when one spouse moves out of the shared residence, but it need not be so. The date of separation can be when one spouse says that he or she wants a divorce, and then the parties cease communicating as they did previously, and/or begin residing in separate bedrooms.

The date of separation is important because that is the date in which marital property stops accumulating. Any property that a spouse acquires after the date of separation is separate property.

No, this is a common misconception. There are actually 11 factors relevant to equitable distribution, including the length of the marriage, the age of the parties, the opportunity by each party to acquire future acquisitions and income and whether one party will be the primary custodian of any children. That being said, a good rule of thumb is the longer the marriage, the more closely marital property will be divided on a 50/50 basis. Further, for smaller marital estates, it is more likely that it will be divided on an even basis.

Marital property, or the “marital estate,” is quite broad. Marital property consists of all property acquired by either party during the marriage, as well as any increase in value of property acquired by either party before the marriage, with a few limited exceptions. The main exceptions are property acquired by gifts between spouses, and inheritances, even if received during the marriage.

It is worth noting that even if the property is in one spouse’s name only, such as a vehicle or a checking account, it is nonetheless marital property if it was acquired- or opened in the case of a bank account- during the marriage. Further, each party’s retirement accounts, pensions and 401(k) plans are marital property. If the plans were initiated prior to the marriage, then whatever was built up during the marriage is marital property subject to equitable distribution.

It should also be noted that marital property stops being acquired as of the date of separation, not necessarily when the divorce becomes final.

Equitable distribution essentially refers to the division of property that takes place between spouses in the event of a divorce. Often times, a married couple will acquire and build up a marital estate, in which each spouse has a property interest.