Equitable Distribution vs Community Property in a Divorce

Arguably, the equitable division of shared assets is one of the primary concerns that couples consider when proceeding with a divorce. According to New Jersey law, equitable distribution is defined as the “distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage”. Marital assets are typically defined as those which are acquired between the date of marriage and the date on which the complaint for divorce is filed.

Notably, there is a distinction between equitable distribution and community property. In states that practice equitable distribution, assets acquired during marriage belong to both parties regardless of title to said property. During a divorce, this property may be distributed by the courts in a variety of ways.

Factors often include:

• Each spouses earning potential
• If a spouse was a stay at home parent
• The duration and standard of living established during the marriage
• The age, physical condition, and emotional health of the spouses
• Economic circumstances at the time of divorce
• Each individual’s contribution to marital property
• Any other factors that the court deems appropriate

While marital assets may not be distributed equally, they are intended to be distributed fairly, which is the key factor to consider during equitable distribution. New Jersey follows the equitable distribution approach.

On the contrary, a number of states follow the community property approach to marital property. Under this approach, all marital assets are viewed upon as being owned equally by both spouses. The only states that follow this approach are Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Interestingly, the community property standards also apply to ownership of debts.

As a reminder, in the State of New Jersey there are two requirements for filing a Complaint for Divorce. The first step is to see whether or not you meet those requirements. These are the two requirements:

1. You or your spouse must have been a resident of New Jersey for at least one year. If you are filing on the grounds of adultery, this requirement is waived.
2. You must select a ground for divorce.

There are two basic types of grounds for divorce: fault and no fault. A no-fault divorce is usually less costly because you don’t have the burden of proving your spouse’s bad conduct.

There are two no-fault grounds. The most commonly cited one is “irreconcilable differences.” When you use this ground, you are stating that there is no hope that you and your spouse will be able to work out your problems and that the causes that led to your decision to divorce will likely remain.

The second no-fault ground is separation. If you and your spouse reside in separate residences for a period of eighteen months, you can file on this ground upon the completion of eighteen months of separation.

There are several fault grounds. The most commonly used are abandonment, mental and/or physical cruelty, adultery, and drug or alcohol abuse or addiction.

If you are going through a divorce, our team of experienced Bergen County divorce attorneys at Aretsky Law Group P.C. can help you navigate the grounds for divorce in New Jersey.