Equitable Distribution Of Marital Debt in a NJ Divorce
New Jersey law considers the assets and debts that a couple acquired while married to be marital property. In the event of a divorce, New Jersey law requires the “equitable distribution” of marital property, which means that the division of property must be fair, though it might not be equal. While the term ‘marital property’ may cause a person to think of tangible items, more frequently the ‘property’ that gets the most attention upon divorce is debt.Factors in Determining How to Distribute Marital Debt
In determining the equitable distribution of marital property, New Jersey courts must consider certain factors that are described in New Jersey state law N.J.S.A. 2A:34-23.1. There are 16 factors listed in the statute, some of the factors are:
- The duration of the marriage
- The income or property brought to the marriage by each party
- The standard of living established during the marriage
- The income and earning capacity of each party
- The debts and liabilities of the parties
A New Jersey judge has the discretion to determine how to weigh each of the factors, and also has the ability to consider additional factors if he or she finds necessary. A judge will attempt to gain an understanding of the divorcing couple’s finances and circumstances of their marriage in order to make as fair a distribution as possible.Specific Types of Marital Debt
Credit Card Debt
Credit card debt is a very common type of debt that must be distributed upon divorce. The general rule is that both spouses are liable for the debt that either spouse incurs during the marriage. In determining who to assign the debt to, a judge may take into account which spouse incurred the debt or which spouse benefited from the debt and may assign the full debt to that spouse.
Marital Home Debt (Mortgage)
If the spouses own a home during the marriage and has debt, it is usually the best course of action to sell the home and use the proceeds to pay off marital debt. If a couple has children and moving would detrimental to them, the home may be assigned to one spouse. In that case, the spouse that keeps the house will typically buy out the other spouse’s share of the home, though in some cases the couple may continue to co-own the home.
Any separate debt that one spouse brings into the marriage remains that spouse’s debt after a divorce. Student loans are a common type of debt that are incurred by spouses before they get married. The judge will take into account the amount of each spouse’s separate debt in determining how much marital debt to assign to each spouse.
If you have any questions about the equitable distribution of marital debt, call the Law Offices of Peter Van Aulen at (201) 845-7400 for a free consultation. His main office is located in Saddle Brook New Jersey and he has a number of meeting locations in Northern New Jersey.
Equitable Distribution Criteria - NJSA 2A:34-23.1.