What Is the Difference Between Separate and Marital Property?
What Is Nonmarital Property When You Are Getting a Divorce?
Divorces are not always contentious. Sometimes, couples can divide their property equitably. When they cannot do this, the court will have to step in and make a ruling.
Nonmarital property will not necessarily be included with the marital assets that need to be divided during a divorce. Nonmarital property consists of assets that each person owned before the wedding took place. In order to remain separate after the marriage, the spouses must not add their personal assets to joint accounts. They must also refrain from using money from joint accounts for the upkeep of their property. Furthermore, the spouses may not add one another’s names to the deed of the property.
Other examples of nonmarital property are inheritances that one spouse received. If a person keeps an inheritance to themselves by not adding it to a joint bank account, it will be considered as separate property. In the event that an individual received gifts that were not intended for their spouse, this will also be separate property if maintained in individual accounts.
In most cases, if someone receives a gift from someone other than their spouse, this property is considered to be nonmarital property. Examples of gifts as nonmarital property include:
In most cases, inheritances are considered to be nonmarital property. However, the court may designate it as marital property under the following circumstances.
- The couple commingled the property with accounts they own jointly. For example, one spouse inherited a sum of cash from a relative and deposited it in a joint account.
- One spouse inherited an item that the couple uses for the benefit of the entire family. One example is a vehicle that both spouses use to take the children where they need to go.
- The couple uses the property as a source of income for the family. An example is rent that the couple receives from property that was inherited by one spouse.
Types of Marital Property
Marital property is property that a couple acquires after marrying. It doesn’t matter if the property is in one spouse’s name or that one spouse paid for the property. This includes:
- Stocks and bonds
- Bank accounts
The Equitable Distribution System of New Jersey
The court divides property according to what it believes is fair. This does not necessarily mean that each spouse will receive 50 percent of the assets. The court doesn’t consider the following factors with the same amount of weight, but it may consider each spouse’s financial situation to be of the utmost importance. Equitable distribution will depend on the following factors.
- If one person has significantly more nonmarital property than his or her spouse, the court may award the individual with less nonmarital assets more of the marital property.
- If an individual is in bad health or much older than his or her spouse, the court may award a greater amount of the marital assets to the spouse.
- If one spouse will have custody of the children, the court may award additional assets to this person.
- If one person cannot expect to earn as much as his or her spouse, the court may award the spouse with less earning power more of the marital assets.
- If the marriage lasted an especially long time, the court may award a larger amount of the marital property to the spouse with less earning power.
- If one person worked to earn money to pay for the property and paid to maintain it, this spouse will receive more of the marital property.
- If one spouse stayed at home and took care of the house and the children, the court may award more of the marital property for this contribution to the marriage.
- If an individual had an addiction that cost the couple a significant amount of money, the court may award his or her spouse more of the marital assets.
- If one person is at fault for ending the marriage, his or her spouse may receive more of the marital property.
Both Nonmarital and Marital Property
Sometimes, property can be both marital and nonmarital. An example of this is a house that one spouse purchased before the marriage. After the marriage, both spouses contributed toward the mortgage payments. The resulting amount of equity would be marital property at that point, and both spouses would own that portion of the house’s value.
The Concept of Exclusive Use and Possession
The court may grant exclusive use and possession of marital property to one spouse in some instances. This type of property can include the family’s:
- Household furnishings
One individual may have paid for these items and possesses the title to the property. The court may award it to his or her spouse if it decides to designate it as the exclusive use and possession of the spouse. This is a temporary order, and it can last between 30 days and five years.
With the exclusive use and possession order, one spouse is awarded primary custody of the couple’s children. This person can ask the court for exclusive use and possession of the family home and the family vehicle. Once the court grants this request, the other spouse’s rights to the property end even though his or her name may be on both pieces of property. This property must be divided after the contract expires.
Which Spouse Keeps the Family Home?
In the event that the court does not grant an exclusive use and possession order, it may award the family home to the parent with primary custody of the children. If this person doesn’t have the means to afford the house, the court will order it to be sold. Then the couple may split the assets. In some cases, the entire sum of the sale goes to one spouse.
Sometimes, a couple comes to an agreement in which the individual with custody of the children has permission to live in the house for a designated amount of time. After that time is up, he or she must buy out his or her ex-spouse’s interests in the property. If this isn’t possible, the couple may sell the house and divide the assets.
Who Gets the Pension?
The Uniformed Services Former Spouses’ Protection Act ensures that military pensions will be divided during divorce proceedings. Although this act is in effect, it doesn’t give the courts very many guidelines for dividing assets between members of the military and their spouses. Therefore, if you are a service member, and you and your spouse are seeking a divorce, you need to consult a divorce attorney.
Property division can be a contentious issue. If you need more information on these matters, contact the Law Offices of Kelly Berton Rocco< by calling us at (201) 343-0078 or by using our online form.