Equitable Distribution, Civil Unions And Same-Sex Marriage….Oh My

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.”

Factors the Court Considers

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:

  1. The duration of the marriage or civil union;
  2. The age and physical and emotional health of the parties;
  3. The income or property brought to the marriage or civil union by each party;
  4. The standard of living established during the marriage or civil union;
  5. Any written agreement made by the parties before or during the marriage
    or civil union concerning an arrangement of property distribution;
  6. The economic circumstances of each party at the time the division of property
    becomes effective;
  7. 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;
  8. The contribution by each party to the education, training or earning power
    of the other;
  9. 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;
  10. The tax consequences of the proposed distribution to each party;
  11. The present value of the property;
  12. 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;
  13. The debts and liabilities of the parties;
  14. 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;
  15. The extent to which a party deferred achieving their career goals; and
  16. Any other factors which the court may deem relevant.

The Challenge of Equitable Distribution

When dealing with a same-sex couple, equitable distribution can be quite
challenging. The average same-sex married [1] couple is together for many
years prior to entering into a domestic partnership [2], 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.

Weiss v. Weiss

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. [3] 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.

Berrie v. Berrie

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.

Get Help Today

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.

About the Author


John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.

Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.

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