Difference Between Marital Property And Separate Property

Marital vs. Separate Property

With respect to the division of marital property, New Jersey is an ‘equitable distribution’ state. The touchstone of equitable distribution is fairness to the parties, not equality of distribution. Thus, in a New Jersey divorce action, the marital property is not necessarily, or even commonly, divided 50/50. Courts instead look for a distribution of the marital property that is fair, or, in more legalistic language, equitable.

Marital Property

Marital property is that property which is acquired by either or both spouses (excepting gifts and inheritances, which are defined as separate property) during the course of the marriage, commonly defined as ranging from the date of the marriage to the filing of the divorce complaint.

Separate Property

Separate property is all property that was brought into the marriage by each spouse, and all property gained after the date of the filing for the divorce. Additionally, any gifts or inheritances received by a spouse during the course of the marriage are also defined as separate property. Separate property is not subject to equitable distribution.
A caveat to the general immunity of separate property from the process of equitable distribution is that the increase in value of separate property realized during the course of the marriage is potentially subject to division. For example, assume spouse A receives, during the course of the marriage, a gift of stock from a relative, worth $10,000. Assume further that the stock appreciates to $15,000 at the date the divorce complaint if filed. In that circumstance, the $5,000 appreciation of the stock is subject to equitable distribution between spouse A and spouse B. Of course, and as stated above, that does not mean each spouse with receive $2,500. Again, the touchstone of equitable distribution is fairness, not equality. One final point about an increase in value of separate property: New Jersey courts do consider whether the increase in value of separate property has been the result of market forces (as in the example above), or the result of the labors or financial contributions of a particular spouse. In the latter case, the increase in value is likely to be given entirely to the spouse who made those efforts.

You Need a Divorce Attorney

If you are about to go through a divorce in New Jersey, or if you are currently going through a divorce, it is important that you understand what constitutes marital property and what constitutes separate property in your particular case. To assure your interests are adequately protected, it is important that you consult with a competent attorney skilled and experienced in New Jersey family law.

Contact Vincent DeLuca, Esq., Certified Matrimonial Attorney

Vincent C. DeLuca of Villani & DeLuca, P.C., is certified by the New Jersey Supreme Court as a Matrimonial Attorney. Mr. DeLuca is one of a limited number of attorneys to hold the prestigious certification of Matrimonial Attorney in New Jersey. Mr. DeLuca, whose practice is devoted to Family Law in Ocean County and Monmouth County, is one of only five certified Matrimonial Attorneys on the Roster of Mediators for Economic Aspects of Family Law in Ocean County, New Jersey.