When dissolving a civil union or marriage, most cases involve some degree of equitable distribution. N.J.S.A. 2A:34-23(h) provides authority for the court to order a division of property. Specifically, the court can equitably distribute “property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage or civil union.” Id. N.J.S.A. 2A:34-23.1 goes on to set forth factors the court should consider in determining how property is to be equitably divided. These statutory factors are:
- The duration of the marriage or civil union;
- The age and physical and emotional health of the parties;
- The income or property brought to the marriage or civil union by each party;
- The standard of living established during the marriage or civil union;
- Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;
- The economic circumstances of each party at the time the division of property becomes effective;
- The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage or civil union;
- The contribution by each party to the education, training or earning power of the other;
- The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, or the property acquired during the civil union as well as the contribution of a party as a homemaker;
- The tax consequences of the proposed distribution to each party;
- The present value of the property;
- The need of a parent who has physical custody of a child to own or occupy the marital residence or residence shared by the partners in a civil union couple and to use or own the household effects;
- The debts and liabilities of the parties;
- The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple or children;
- The extent to which a party deferred achieving their career goals; and
- Any other factors which the court may deem relevant.
When dealing with a same-sex couple, equitable distribution can be quite challenging. The average same-sex married  couple is together for many years prior to entering into a domestic partnership , civil union, or marriage. What does that mean for your arguments when trying to determine how to divide their property? There is not a simple answer.
The phrase “during the marriage” has been subject to decades of case law, without even taking into consideration the unique legal circumstances many same-sex couples have now found themselves in. The key question for purposes of this blog entry is when does the marriage begin. The court in Painter v. Painter, 65 N.J. 196 (1974), indicated that the marriage ceremony commences the marriage. See id. at 217. As such, property acquired prior to the marriage ceremony is generally immune from equitable distribution. See id. at 214.
Courts have long found ways to bring otherwise immune property into the equitable distribution analysis. The most popular method of bringing immune property into the “marriage” is to prove it was acquired in anticipation or contemplation of marriage. The key is whether the parties intended the property to be marital property; that is not always easy to prove. The primary case on this topic is Weiss v. Weiss, 226 N.J. Super. 281 (App. Div. 1988), certif. denied 114 N.J. 287 (1988). The court in Weiss articulated the issue as “whether a house acquired before marriage, with the intention that it would become the parties’ marital home, is exempt from equitable distribution because title was placed in the name of only one of the parties.” Id. at 284.
The facts of Weiss are simple. The parties were engaged in February 1967, entered into a contract to purchase a home on February 10, 1967, closed on the house in April 1967 and were married in August 1967, a mere four months later. See id. The problem was that the house was titled only in the Husband’s name. See id. In determining that the house was subject to equitable distribution, the court indicated that
a marital partnership may be found to have commenced prior to the marriage ceremony, where the parties have adequately expressed that intention and have acquired assets in specific contemplation of their marriage. This conclusion recognizes that the “shared enterprise” of marriage may begin even before the actual marriage ceremony through the purchase of a major marital asset such as a house and substantial improvements to that asset. Id. at 287.
In essence, the Weiss court found there was an implied contract to bring the home into the marriage for equitable distribution purposes.  This was an equitable remedy to ensure a party was not unfairly treated during a divorce due to simple temporal argument that an asset was acquired shortly before the marriage ceremony.
The court in Berrie v. Berrie, 252 N.J. Super. 635 (App. Div. 1991) went on to expand upon this principle of bringing pre-marital property into the marriage. That court commented that “’intention” described in Weiss is not an intention to marry, but rather to create ‘a marital partnership . . . prior to the marriage ceremony’ with respect to the particular property, i.e., the equivalent of a business partnership.” Id. at 646 (internal citations omitted). The key extracted from these cases is that parties must have a specific intent to create a partnership with respect to specific property. In other words, it is an analysis that must be undertaken with each piece of property in question.
How does this relate to same-sex marriages? Assume Jass and Kathy met and started dating in 1990. They moved in together in an apartment in 1991. In 1993, they decided to purchase a house in Highland Park. However, Jass had terrible credit; therefore, they purchased the house in Kathy’s name. Kathy was a doctor making $250,000 per year, while Jass taught at an elementary school, making $75,000 per year. Throughout the relationship, Kathy paid all of the roof expenses on the house.
The women entered into a New Jersey civil union in 2010. It is now 2015 and Kathy has decided she wants to trade in Jass for a younger model. Throughout the entire relationship and civil union, the house was never put in joint names and remains in Kathy’s name. Jass wants the house sold and the proceeds equally divided. What rights does she have? How does this situation differ from an opposite-sex couple in the same scenario?
There is no case law addressing these types of facts, which is not surprising given the relative infancy of legally recognized same-sex relationships in New Jersey. It is this author’s opinion that the analysis is different from what was outlined in Weiss and Berrie, at least to a degree. Opposite-sex couples could always get married and, therefore, the analysis centered on the creation of a partnership with regard to specific property or looking at whether something was acquired in anticipation of marriage.
When Jass and Kathy purchased the house, it could not have been in anticipation of marriage, as they could not legally get married nor did they have reason to believe civil unions or marriage were on the horizon. Therefore, the analysis must center on whether they intended to create a “marriage-like” partnership. That may mean proof on what the parties would have done had the option to marry been available. That may mean doing something akin to a cohabitation analysis under Gayet v. Gayet, 91 N.J. 194 (1982), and its progeny, to determine if there is economic interdependence between the parties.
Jass and Kathy have the added complication that Jass did not contribute to the roof expenses during the relationship and civil union. Kathy will want to argue that they were dating and she allowed Jass to live in “her” house. Facts, as always, will drive you and your attorney’s arguments. You should concentrate on gathering evidence that the parties were in a partnership akin to marriage. The cohabitation facts, which are now laid out in N.J.S.A. 2A:34-23(n), may provide a good template, in addition to the concepts laid out in Weiss and Berrie. As always, the focus is on the intent of the parties.
Regardless, we know that only arguing that the marriage should be extended back to some distant date simply because the parties could not actually marry will not carry the day. In these types of cases, discovery is more important than ever. You and your attorney are encouraged to take depositions and determine possible witnesses from day one, because if you, as Jass’ attorney, do not settle, you will have the job of proving the parties had the intent to purchase the house together and that it should be part of the marital estate.
Contact the LGBT Attorneys at Previte & Nachlinger to discuss your case. As illustrated above, you need creative arguments to ensure your rights are protected.
 We use “married” to refer to people in civil unions and marriages in this article.
 Dissolution of domestic partnerships are guided by a different statutory scheme than discussed in this paper. This discussion is not intended to provide any analysis of how property would be divided in the event of dissolution of a domestic partnership.
 Also, the court importantly emphasized that “[t]he burden of establishing the immunity of an asset from equitable distribution rests with the party asserting the immunity.” Id. at 291.