Not understanding what happens to property you owned before marriage when you are divorcing can make you feel anxious. There are specific rules in New Jersey about dividing assets in divorce. Knowing how property division works, what is separate property, and what is marital property may help relieve some of your apprehension and can also make you better prepared to fight for what is yours.
What happens in your divorce when it comes to property will positively or negatively impact you financially for the rest of your life, so it is wise to have an experienced divorce lawyer on your side assisting you with the asset division process. If you are in an upper-income marriage, engaging an attorney who focuses in high-net-worth divorces can help protect your wealth.
How Property Division Works in Divorce
New Jersey courts divide property using the equitable distribution criteria in N.J.S.A. 2A:34-23.1. Only marital property is subject to division. Property that is determined to be separate is yours to keep. The same goes for your spouse—they get to keep their property that is considered separate. So a first step to dividing assets in divorce is determining what is separate property and what is marital property.
Determining What is Separate Property
Generally, the property that you owned before the marriage remains yours in a divorce. Separate assets also include inheritances, personal injury judgments, and gifts given to you exclusively. These conditions apply “generally” because property laws have exceptions. Your property remains separate if you have kept it that way. Mixing separate assets in any way with marital assets, which are assets you obtained during the marriage, changes things. Once you commingle property, courts have a difficult time deciphering what belongs to you alone and what belongs to the marriage. Here are a couple of examples:
- You purchased a home by yourself prior to marriage, but after marrying made improvements to the property using income. Pretty much all income earned during marriage is marital property. By using marital property to enhance separate property, you have commingled assets.
- You have a personal business that your spouse has contributed to financially or by helping out with it in some capacity. Your spouse might have a rightful claim to a share of the business and any value increase, due to their contributions.
If an argument can be made by your spouse that you commingled property you owned before marriage, and you wish to keep 100 percent of that property, it will be up to you to successfully prove their argument wrong. Your attorney can help you determine how the judge may view the situation and advocate on your behalf for a fair decision.
The Role of Prenuptial Agreements
Property you owned before marriage and included in a prenuptial agreement can be yours to keep after marriage. The caveat is that the agreement must have been executed properly so that it is enforceable should your spouse try and challenge it.
A challenge to a prenup could be successful in situations like the following:
- You were not financially transparent when the agreement was entered into.
- Your spouse can show that they were pressured or coerced into signing.
- Your spouse can prove they were rushed into signing the agreement without adequate time to review it or show it to their own attorney.
- Proper procedures were not followed in its execution or the language in it is confusing and unclear.
- The agreement is so unfair and one-sided that the court deems it unconscionable.
These are some of the issues that can arise with prenups. If you fear a challenge to yours, consult with your divorce lawyer who can help you prepare to defend it.
Proving You Owned an Asset Before Marriage
In dividing property, everything starts out on the table as marital property until proven otherwise. You will need to show that it is indeed your property alone. To help prove that an asset is your separate property, gather all records and documentation related to it. Documents that can help prove ownership include:
- Titles for real estate, cars, and boats
- Mortgage documents
- Banking and investment statements going back before you were married
- A will showing that you alone were the beneficiary of an asset or assets
- Trust documents
- Your valid prenuptial agreement.
If you have no paper trail of an asset that was given to you, the person that gifted it to you could potentially provide testimony. Your attorney will help you in determining what evidence will be most advantageous to prove you owned the property before marriage and it has not been commingled.
Dividing Property Between Yourselves
Property division does not have to be done by a judge. Spouses who can agree between themselves on dividing property and keep the court out of the decision-making process maintain control of the process and can often arrive at better outcomes. You will still have to determine what is your separate property and what is your spouse’s separate property so you can divide the marital pot, but you keep the discussion between yourselves, your respective attorneys and perhaps a neutral mediator. If there are disagreements over the ownership of an asset or assets, you may be able to negotiate a fair solution between yourselves so that you can come away with a result that feels satisfactory to both of you.
Our experienced New Jersey attorneys seek to fairly resolve property division issues in the least complicated and contentious way possible.
Contact Our New Jersey Law Firm About Your Property Division Concerns
New Jersey property rules are very complex and there is no single scenario that will apply to every situation. What happens to property you owned before your marriage will be determined by your specific circumstances. Our attorneys at [MFR] Men’s & Fathers’ Rights Divorce Lawyers can advise you based on your individual situation and advocate for you in keeping what was yours before marriage.
Call (201) 880-9770 to schedule a time to speak with a divorce lawyer.
