New Jersey follows an equitable division of property rule when two people go through a New Jersey divorce. As such, any assets acquired during the course of the marriage are subject to division. Any premarital asset you want to protect from being part of a divorce settlement must be kept separate from the marital estate, so it will not be subject to distribution. How do you keep premarital assets outside of the marital estate?
Prenuptial agreements are the best way to protect premarital assets. A good prenuptial agreement clearly describes the assets which will not become marital property and will therefore not be subject to equitable distribution. Premarital property is protected from equitable distribution under New Jersey law. However, it is not always this simple. How is property divided when there is no prenuptial agreement?
Assets Purchased in Contemplation of Marriage
Assets purchased in contemplation of marriage might be considered marital property if not carved out in a prenuptial agreement. To decide if an asset is marital property, the court will look at the behavior of the parties surrounding the acquisition of the property. So for example, if one spouse purchased a house before the marriage, the court will look at whether the other spouse had input into the purchase, invested resources into improving the property, and took an active role in maintaining the property. If the court decides that the house was purchased in contemplation of marriage, then it will be considered a marital asset.
Assets That Increase in Value During the Marriage
Sometimes an asset owned by one party prior to a marriage increases in value during the marriage. In such a case, the court will look at whether the asset was active or passive. Passive assets increase in value without any contribution from the non-owner spouse, and such assets will usually not be subject to equitable distribution. However, if the court decides an asset is active, and the non-owner spouse was involved in whatever caused the asset to increase in value, then the amount of the increase in value will be considered subject to equitable distribution.
What Happens When Premarital Assets are Commingled with Marital Assets?
When parties commingle premarital assets with marital assets, it makes divorce and property division more complicated. Placing funds into a joint account, for example, can convert a premarital asset to a joint asset, as can selling pre-owned stock to buy a family home.
The Bottom Line for Protecting Premarital Assets
Whoever is in possession of a premarital asset and wishes to protect it should never commingle the asset with marital property. You should also not allow your spouse to invest time or effort into improving an asset you own or increase the value of your asset if you wish to keep it outside the marital estate. Do not add your spouse’s name to any account, title, or other ownership documents, if you wish to keep the asset separate. If you have received an inheritance, you should keep the funds in a separate account, and any inherited property outside of the home you live in with your spouse.
Do You Need a New Jersey Divorce Lawyer?
If you need advice on how to protect your assets, either before marrying or because you are considering a divorce, consult with the experienced divorce attorneys at Eveland & Foster. Our team will help guard your assets. Get in touch with an experienced New Jersey divorce lawyer today, and let us help you protect your assets.
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