Equitable Distribution in New Jersey Divorce Proceedings

How Marital Assets Are Divided by the Court (When You Can’t Agree)

Equitable Distribution in New Jersey Divorce Proceedings In the state of New Jersey, when you file for divorce, one of the more challenging tasks you’ll face is the division of marital property—the debts and assets accumulated during your marriage. If you and your spouse mutually agree on how to allocate things, the court will still review your agreement to ensure that there’s no indication of undue influence, misrepresentation, or coercion. If you cannot agree who will receive specific property and who will be obligated to pay certain debts, the court will make those decisions for you.

New Jersey has long applied the concept of equitable distribution to determine how a marital estate is divided. It’s important to understand, up front, that “equitable” distribution does not necessarily mean “equal” distribution. The court will attempt to create a property settlement that is “fair,” based on a wide array of factors, including:

  • How long you have been married;What income or property each party brought into the marriage;
  • The standard of living to which the parties were accustomed during marriage;
  • The age and physical health of the parties at the time of divorce;
  • The terms of a valid prenuptial or postnuptial agreement signed by both parties;
  • The extent to which either party wasted or dissipated marital assets;
  • The earning capacity of the parties at the time of divorce;
  • The contribution either party made to the training, education, or earning power of the other party; and
  • The need for one party to occupy the marital home, such as a custodial parent of minor children.

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, 9:00 A.M. and 5:00 P.M.

Determining the “Best Interests of the Child”

Factors Used by Courts to Establish Custody and Visitation

Determining the “Best Interests of the Child”In New Jersey, as in all states, courts must consider the “best interests of the child” when making decisions about physical custody and visitation. Courts look at a number of factors when making that assessment, including:

  • The ages of the minor children—Although the presumption is slowly changing, there’s still a strong perception that infants, toddlers, and younger children should be with their mother, particularly when the mother has served as the primary caregiver. Known as the “tender years” doctrine, it’s no longer enforced but still carries influence in many courts.
  • The living situation of each parent—Because of the importance of stability in a minor child’s life, courts look at where each parent lives, how permanent that residence is, and whether it provides for the needs of the child. Often, the result is that the parent who retains the family home is more likely to get physical custody. Conversely, a spouse who’s temporarily living with friends or family is less likely to get custody and may even experience limitations in visitation.
  • The willingness of each parent to cooperate with the other—Judges discourage parents from bringing conflict into the parenting relationship. As a general rule, the more cooperative you are with your ex-spouse, and the less evidence that you’ve spoken negatively about the other parent, or tried to alienate your child’s affection of the other parent, the more likely you’ll get favorable custody or visitation arrangements.
  • The strength of a parent’s bond with the child prior to divorce—If you weren’t very involved before the marriage fell apart, a judge is less likely to require the child to spend time with you, unless you can show a meaningful change of heart.
  • The child’s wishes—Typically, the wishes of the child are considered only if the child is 12 years of age or older.

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, 9:00 A.M. to 5:00 P.M.

The Requirement of Separate Legal Counsel in New Jersey Divorce Proceedings

The Requirement of Separate Legal Counsel in New Jersey Divorce ProceedingsThough many divorce proceedings can be contentious, it’s not uncommon for married parties to terminate their relationship amicably. Because a divorce proceeding can be costly, there may be a desire minimize expenses by hiring a single attorney to handle all the details. In New Jersey, that is not permissible.

Under the ethical rules in New Jersey, it is considered an inherent conflict of interest for an attorney to represent both sides in a divorce proceeding. Even where parties appear to be in agreement, there’s a concern that one party might unduly influence the other or engage in misrepresentation. Furthermore, it’s often the case that what is in the best interests of one party is not in the best interests of the other party. For example, when establishing child support, the custodial parent has a vested interest in receiving more support, whereas the non-custodial parent may seek to minimize payments. An attorney representing both sides simultaneously cannot properly advocate for both parties.

In some cases, though, an attorney may draft a divorce settlement that affects both parties. If the parties go to a mediator or work out an agreement on their own, then one of them may take the terms of that agreement to a single attorney to draft the document. Typically, the attorney will send the draft agreement to the other spouse, advising that they have it reviewed by separate legal counsel. If the other party fails to respond or indicates no objection to the terms of the agreement, the attorney typically notes that fact in the agreement. The agreement is then submitted to the court and becomes the basis for a divorce decree.

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, between 9:00 A.M. and 5:00 P.M

Equitable Distribution in a New Jersey Divorce

What Factors Does the Court Consider?

Equitable Distribution in a New Jersey DivorceFor purposes of allocating the assets and debts accumulated during a marriage, the state of New Jersey follows the legal principle of equitable distribution. Under equitable distribution, if the parties to a divorce cannot agree on the division of property and obligations, the court will attempt to distribute the estate fairly. It’s important to note that “fairly” does not necessarily mean equally.

Criteria Used to Allocate Marital Debts and Assets

New Jersey courts consider a wide range of factors when determining what is fair or equitable, including, but not limited to the following:

  • how long the parties have been married,
  • the standard of living to which both parties were accustomed during the marriage,
  • the age and health (physical and emotional) of both parties,
  • whether there was a valid prenuptial or postnuptial agreement governing distribution of property,
  • the extent to which either party brought income or assets into the marriage,
  • the respective income and earning potential of each party,
  • whether one party delayed education or career advancement for the sake of the marriage or to the benefit of the other party,
  • contributions either party made to the education or earning potential of the other,
  • non-cash contributions of either party to the marriage, including childcare and homemaking, and
  • any other relevant factors.

As a general rule, New Jersey courts don’t allocate fault when dividing marital assets, but there are exceptions:

  • when one party wasted or dissipated marital assets through wrongful conduct, such as an extramarital affair, or
  • where one party engaged in egregious behavior, such as physical violence or abuse.

The relative weight of the various factors is entirely within the discretion of the judge.

Contact an Experienced New Jersey Family Law Attorney

At the law office of David M. Lipshutz, we won’t take your case unless we know we can help. For a private meeting, contact our office online or call us at 856-627-1990. We are available to meet with you Monday through Friday, 9 A.M.–5 P.M.