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Premarital Property in Divorce

Equitable Distribution in NJ

Equitable distribution in New Jersey is the division of assets and property that occurs upon divorce. Which assets are subject to equitable distribution? This is a common question New Jersey matrimonial attorneys receive from those either contemplating marriage or those on the brink of divorce. It is an especially common question of those who have married later in life, and who may have achieved significant assets before entering into a marriage.

Equitable Distribution NJ Rule

The general rule in New Jersey is that premarital assets are not subject to equitable distribution. The language of the New Jersey statute states that the property included in equitable distribution is that “which was legally and beneficially acquired by them or either of them during the marriage or civil union.” (Emphasis added.) The inclusion of the phrase “during the marriage” is important, as it specifically includes the property that the couple acquired while they were marriage, therefore excluding the property acquired either before or after the marriage.

So, the general rule is that property acquired by one spouse before the marriage is not subject to equitable distribution.

Exceptions to the Equitable Distribution NJ Rule Interspousal Gifts

There are exceptions to almost any rule, of course, and the rules of equitable distribution are no different. One such exception is included within the New Jersey statute. It states that “interspousal gifts...shall be subject to equitable distribution.” Interspousal gifts are those that are made between spouses. For example, if a wife entered the marriage with $1,000,000 of her own separate money that she acquired before the marriage, and used $50,000 of that money to purchase a car for her husband, that would qualify as an interspousal gift, and the car would be subject to equitable distribution.

Contemplation of Marriage Doctrine

In some cases the property purchased before the marriage may be considered a marital asset that is subject to equitable distribution. Specifically, property purchased “in contemplation of marriage” may qualify under this exception. The cases in this area of law typically deal with real property-specifically homes.

The New Jersey courts addressed this issue in the case of Weiss v. Weiss in 1988. There, the court found that a home purchased during a 6-month engagement period (before the marriage) with a husband's money, and titled in the husband’s sole name, was a marital asset. The facts of the Weiss case show that the future wife was actively involved in the purchase and improvements made to the home, which was used to show that the home was purchased with the intention of it being the marital residence.

The particulars of the equitable distribution NJ rule can be tricky given that there are always exceptions to the rules. Using an experienced matrimonial attorney to handle your divorce case can help you keep those assets that are rightfully your own property. Contact the Law Offices of Peter Van Aulen today for a free initial consultation.


N.J.S.A. 2A:34-23(h) - Equitable Distribution

Weiss v. Weiss, 226 N.J. Super. 281 (App. Div. 1988)

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