Untangling Lives, Not Finances: Can You Divorce Without Splitting Assets?
Ending a marriage is messy. Dividing up everything you own? That can make it even messier.
But here’s the thing—splitting assets down the middle isn’t always required during a divorce. For some couples, the ideal resolution is a separation agreement that keeps their finances separate.
As divorce attorneys practicing family law here in New Jersey, we’ve helped many clients navigate this tricky terrain. And while laws vary by state, it’s often possible to untangle lives without dividing up property.
How? Well, approaches like prenups, mediation, and collaboration can increase the chances of each spouse keeping their separate assets intact.
Why Assets Get Divided in Divorce
In most divorces, couples must divide up the assets and possessions they accumulated during the marriage.
This happens for a few key reasons:
- To compensate for joint efforts and contributions to the marital estate. If one spouse sacrificed their career to support the family while the other advanced professionally, an equitable division recognizes those contributions.
- To account for future needs and earning potential after the split. Especially when one spouse gave up earning power, asset division provides for their financial security going forward.
- Because state laws require it. In New Jersey, we follow equitable distribution rules for property division unless a prenuptial agreement states otherwise.
New Jersey is not a community property state. All marital assets don’t automatically get split 50/50 here. Instead, our state allows for a more customized distribution based on factors like:
- Each spouse’s income and property brought into the marriage
- Contributions to acquiring assets (financial or otherwise)
- Length of the marriage
- Economic circumstances and needs after the divorce
- Income potential and employability of each spouse
- Tax consequences and child custody arrangements
- Any other factors argued as relevant to an equitable outcome
So, in New Jersey, there is room for some flexibility and discretion in asset division. But the default remains that marital property will get divided equitably, not simply remain separate unless agreed otherwise.
Key Factors for Claiming Separate Property in a Divorce
If you want the court to cooperate with keeping assets intact, be ready to prove:
- Timing: When was the asset purchased in relation to the marriage? Assets owned before have the best case.
- Source: Was it a gift or inheritance vs. the fruits of joint marriage efforts?
- Use: Who is the legal owner and primary user? Did it benefit one spouse?
- Control: Who made decisions about the asset?
- Commingling: Was it kept totally separate vs. mixed into joint finances?
Thorough records make establishing these factors much easier. Consulting with professionals helps weigh the pros and cons of any agreement.
Don’t assume you must split everything down the middle. But also consider your spouse’s perspective and needs after the marriage ends.
When Can Assets Remain Separate During a Divorce?
While most states require equitable division of marital assets, there are some cases where certain property can remain separate and not get split.
Separate Property Owned Before Marriage
Assets that were acquired before the marriage took place can often be claimed as separate property. This is especially true of real estate or homes owned prior to getting married. If you can show the home was yours before the wedding bells, the court will likely rule it remains separate property.
Family heirlooms, collectibles, or valuables verifiably owned before the marriage. Items gifted or inherited specifically to one spouse are generally considered that person’s separate property.
Gifts or Inheritances Received During the Marriage
Assets received individually as gifts or inheritances during the marriage (and kept separate from marital property) have a strong claim to remaining that spouse’s sole property. If properly documented, these items may stay separate.
It may also include inherited real estate that has been kept apart from jointly owned marital property. With records showing the inheritance and no commingling of marital assets, it can stay separate.
When a Prenuptial or Postnuptial Agreement is Involved
Prenuptial or postnuptial agreements often specify what assets will remain separate property in the event of a divorce. These documents allow couples to customize what gets divided and what stays separate outside of the usual equitable distribution rules.
Typically they are used to:
- Protect assets brought into the marriage by one spouse. With a prenup or postnup, real estate, family businesses, collectibles, stock assets, or an inheritance can often remain that spouse’s separate property.
- Limit alimony obligations. By keeping more assets separate, less marital property exists to be factored into alimony calculations.
- Define separate property to include assets received during the marriage. Gifts or inheritances can be designated separate property if a prenup is in place.
- Set other customized division terms. Couples can use prenups to creatively divide assets, like staggering the split over time.
With a solid marital agreement, it becomes far easier to divorce without an equal split of all marital assets. It provides clear evidence of intent to keep specified assets separate.
Mediation can be a good option for couples who want to avoid a contentious legal battle over dividing assets in a divorce. In mediation, you and your spouse meet with a neutral third-party mediator to try to come to a mutual agreement on how to divide your assets and debts.
The mediator facilitates the discussion but does not make any binding decisions. Mediation allows you and your spouse to openly communicate your needs and priorities and craft a division of assets that works for both of you. It is typically faster and less expensive than going through formal court proceedings.
Developing your own settlement through mediation rather than fighting it out in court can help reduce conflict. Mediation is confidential, so you can speak freely without your statements being included in court records. While mediation may not work for high-conflict divorces, it can be an effective option for couples who want to split their assets fairly without an ugly court battle.
How The Right Divorce Lawyer Can Help
Navigating asset division during divorce is tricky, but the right lawyer can provide pivotal help in keeping certain property separate.
Here are some of the tangible ways our attorneys at Netsquire assist clients:
- Review all assets acquired before and during marriage to build your case. We leave no stone unturned in documenting the origins and lineage of key properties.
- Construct persuasive legal arguments for why assets obtained before marriage, received as gifts, or inherited should remain undivided. We cite precedents and make ironclad arguments.
- Gather concrete evidence like financial records, statements, and appraisals to back up separate property claims. We assemble a rock-solid documentation file.
- Represent your interests fiercely in court if the only way to protect assets is litigation. We pull out all the stops in advocacy.
- Negotiate creatively in mediation or collaboration if needed to craft a balanced compromise. We leverage our experience to gain favorable terms.
The path to an optimal resolution exists with the right guidance. If you’re exploring the possibility of divorce without asset division, please get in touch. We’re here to discuss your situation in a no-obligation consultation.
Contact us today to take the first step toward resolution.