Property belonging to the husband and wife, which can include real estate, assets, debts and personal possessions, must be divided up at the time of divorce.

Types of Property

Separate Property

A man or woman's separate property is generally:

• Property owned by the man or woman before marriage;
• Gifts received by the man or woman individually during the marriage;
  
• Property inherited by the man or woman individually during the marriage;
  
• Money received as damages for a spouse's personal injuries that occurred during marriage;
  
• Property specifically designated as separate property in a written agreement between the man and woman.

Marital property is all property (other than separate property) purchased or received by either the husband or wife or both of them during their marriage.

If a man or woman receives or will receive a pension or retirement benefits, some of that income is usually considered marital property if it was earned during the marriage or will be calculated based in part on the years during the marriage that the spouse was employed.

Some states will treat separate property acquired before the marriage as marital property if it was purchased “in contemplation of marriage.” For example, the man or woman may purchase a house several months before their wedding, but intend to live there as man and wife. If they divorce, those states will treat the house as marital property.

Dividing the Property

• If the Husband and Wife Agree

Court Review of Agreements

The court may review property settlement agreements to be certain both parties are treated fairly.

• If the Husband and Wife Do Not Agree (Court Ordered Distribution of Property)

Community Property vs. Equitable Distribution

If the husband and wife do not agree on how to divide their property, the law provides a system for doing so. State law follows one of two different kinds of property division, either "community property" or "equitable distribution."

• "Community property" is a legal term that means that the property is divided equally between the parties.
  
• "Equitable Distribution" is a legal term that refers to dividing the property up based upon certain factors and the circumstances of the husband and wife. It does not necessarily mean that the property is divided equally between the husband and the wife.

New Jersey follows the rules of equitable distribution, and considers various factors before attempting to fairly distribute property between a husband and wife.

• The court will distribute all property acquired by the husband and wife during the marriage, or in contemplation of marriage.
  
• Any property acquired by one spouse as a gift or as part of a Will is excluded.
  
• Gifts given by one spouse to the other are included.

Factors in Dividing Property

New Jersey courts consider the following factors in deciding how to divide marital property:

• The length of the marriage;
  
• The age, physical and emotional health of the husband and the wife;
  
• The income or property brought to the marriage by the husband and the wife;
  
• The way the husband and wife lived during the marriage;
  
• Any written agreement made between the husband and wife before or during the marriage about the distribution of property (e.g. prenuptial agreements);
  
• The financial circumstances of the husband and wife at the time the division of property goes into effect;
  
• The income and earning capacity of both the husband and the wife, including training, employment skills and work experience; length of absence from the job market, time and expense necessary to train or educate spouse to become self-supporting at the standard of living enjoyed during the marriage;
  
• The contribution of the husband and the wife during the marriage to the education, training or earning power of the other;
  
• The husband and wife’s contribution to the amount or value of the marital property and the contribution of a party as a homemaker;
  
• Tax consequences of the proposed distribution to each party;
  
• Present value of the property to be distributed;
  
• Need of the spouse who has physical custody of a child to own or occupy the marital residence and to use or own specific household effects;
  
• Debts and liabilities of the husband and the wife;
  
• Need for creation, now or in the future, of a trust fund to pay for foreseeable future medical or educational expenses for a spouse or child;
  
• The extent to which either the husband or wife may have deferred achieving their career goals during the marriage; and
  
• Any other information which the court may deem relevant.