“What’s included” is a question which I hear many times each week as I meet with clients who are thinking about or embarking on the path of divorce or separation. What assets are included in the marital estate is defined by statute in New Jersey. Essentially, anything that was acquired by either party during the marriage by either party, regardless of whose name the asset is titled, is part of the marital estate and subject to equitable distribution. There are, of course, exceptions to this rule, and those exceptions include assets that were acquired by way of a gift from a third party ( think 40th birthday present from your best friend, or transfer of property from your parent) – as long as it is maintained in the recipient name and not placed in joint names with your spouse, and property that is inherited by one of the parties to the marriage.When having conversations with client, there are several questions that typically come up:
Pensions: Pensions and other retirement accounts are included in marital assets. However, the amount is limited to the amount of money that was accumulated during the marriage ( and any growth thereon). For instance, if you have a 401(k) account and before the marriage you had $100,000 in the account, and during the marriage, you contribute another $50,000, it is only that $50,000 that is considered marital.
Businesses: A closely held business that was started, or increased in value during the marriage is subject to distribution. An example of this might be a spouse who started a tech company during the marriage. The business will typically be valued by an expert (forensic accountant) and a portion will be awarded, or distributed to the non-business owner spouse.
Jewelry and other gifts between spouses: Gifts from one spouse to another are included in the marital estate and will be distributed between the parties. The one notable exception to this rule is the engagement ring. That was a conditional gift that was given before the marriage, and once the marriage occurs, is considered a pre-marital asset. Yes, that’s often a bitter pill to swallow!
The mountain retreat that I had before I got married: As a general rule, this is considered a premarital asset and is exempt from distribution. The exceptions to this can be when the spouse whose asset it is has transferred the property into both names. This happens sometimes during a refinance. Also, if the non-titled spouse has made significant monetary contributions to the property during the marriage, and this has resulted in an increase in value, the non-titled spouse may have an equitable claim.
Restricted Stock and/or stock options that will not vest until after the divorce: If the options or stock were awarded for service during the marriage, then at least a portion is marital. What typically happens is that the distribution is not equal as there are post marital efforts that must be made in order to actually get the asset.
These are but a few issues that come up when discussing assets. Not an exhaustive list for sure, but certainly issues to ruminate on and to discuss !