Unless you are a family law attorney or have been through the process before, getting a divorce in New Jersey can be a daunting task. Many people simply don’t know what to expect and where to start. Often times, people seek advice from family, friends or even strangers on social media rather than speaking with an experienced family law attorney. This can be a big mistake and can often lead to confusion and misconceptions. Below I will discuss the top ten misconceptions about divorce in New Jersey:
Misconception #1: Once we separate the property I acquire is not subject to equitable distribution upon divorce.
The act of a married couple physically separating has no legal effect absent the filing of a Complaint. Thus, parties can separate for years but the assets and debts they acquire during their separation will typically still be considered marital assets and marital debts which are subject to equitable distribution. The law in New Jersey defines the end of a marriage as when the Complaint for Divorce is filed. That is the date the Court will use to determine the end date for purposes of equitably distributing marital assets and debts.
Misconception #2: The property I purchased prior to the marriage cannot under any circumstances be subject to equitable distribution upon divorce.
While pre-marital properties are typically not considered marital assets subject to equitable distribution upon divorce, those properties purchased “in contemplation of marriage” are considered marital assets. Also, if you at any time place your spouse’s name of the Deed to the house, it will be considered a marital property. Moreover, if you are using marital assets (such as your paycheck) to make mortgage payments or substantial improvements to the property, your spouse may have a claim for the share of the equity gained by the use of those marital funds.
Misconception #3: My retirement plan is not subject to equitable distribution upon divorce.
Just as your paycheck is a marital asset, the wages you defer to a retirement plan, such as a pension, 401(k), 403(b) and an IRA are also marital assets subject to equitable distribution. This is the case regardless of whether your spouse works or has any retirement plan of his or her own.
Misconception #4: I won’t have to pay my spouse alimony upon my divorce if we are both working full-time.
The concept of alimony is based upon that premise that both parties, upon divorce, should be able to enjoy a lifestyle reasonably comparable to that which they enjoyed during the course of the marriage. This being the case, if there is a substantial disparity of incomes, there will likely be an alimony obligation to the dependent spouse.
Misconception #5: The business I started prior to the marriage is not subject to equitable distribution upon divorce.
Much like a pre-marital property, a pre-marital business will only be considered a non-marital asset if marital funds were not used to finance and grow the business. However, if marital funds are used for this purpose, your spouse may have a claim to a portion of the value of the business.
Misconception #6: My inheritance will not be subject to equitable distribution upon divorce.
Gifts and inheritances acquired before or even during the marriage are typically not considered marital assets. Again, however, if these funds are comingled with marital assets, they will no longer be protected from equitable distribution. to avoid this pitfall, gifts and inheritances should always be kept in bank accounts in your name only and these funds should not be used to pay the mortgage on a jointly owned property.
Misconception #7: If my spouse cheats on me during the marriage, I will not have to pay alimony upon divorce.
New Jersey is a no-fault divorce state. Adultery, even if proven, is not an enumerated factor for the Court to consider when analyzing alimony or equitable distribution. If there is a significant disparity in incomes, there will likely be an alimony award regardless of the behavior of a cheating spouse.
Misconception #8: I won’t under any circumstances be responsible to pay my spouse’s student loans upon divorce.
Student loans which were acquired during the course of the marriage are typically considered a marital debt, subject to equitable distribution. Equitable arguments can be made however, to diminish one’s responsibility for student loans if such loans were necessary for the other party to earn a degree and improve their earning potential beyond divorce.
Misconception #9: I won’t under any circumstances be responsible to pay my spouse’s credit cards upon divorce.
Credit cards which were acquired during the course of the marriage are typically considered a marital debt, subject to equitable distribution. Often times credit cards are used to pay marital expenses (such as groceries, utilities, etc.) which benefit both parties. Thus, even if your name was never on the card and you had no knowledge that the card was being used, absent fraud it is typically considered marital debt.
Misconception #10: I can enter into an enforceable post-nuptial agreement with my spouse and we can continue living happily ever after.
Couples are free to enter into enforceable pre-nuptial agreements prior to the marriage. Once couples are married
I hope this information was helpful. For additional questions, contact me at (856) 428-6600 or send me an email at firstname.lastname@example.org
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