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Division of marital property is an important issue in almost every divorce. Marriages of any duration from one year to thirty years typically involve acquiring property and debt together during that time. If the marriage fails, it .

A marital asset is typically any asset that you or your spouse receives, buys, or otherwise acquires during the marriage. This includes everything from real estate to bank accounts to furniture. In that same vein, any property that you or spouse had before the marriage started is typically a separate asset. This distinction is very important. Typically a court will not distribute separate property in a divorce proceeding. Only the marital assets are subject to division.

Like so many other laws, though, there are exceptions to the general rule that anything acquired during the marriage is marital property that needs to be divided during the divorce. First, inherited property is generally considered separate property. This includes anything you may have inherited through a will or other testamentary instrument, such as a life insurance policy, whether it is money, real estate, or personal property. Next, anything you were gifted by someone outside of the marriage. For example, if you receive a gift of jewelry from your grandmother so long as the giver intended to give it only to you, that gift is separate property. By contrast, any gift that one spouse gives another during the marriage is marital property. Third, certain types of lawsuit awards, such as the pain and suffering component of a personal injury claim, are typically considered separate property.

Moreover, property that began as separate property can end up becoming marital property. This will generally depend on how the parties treat the property during the marriage. If the separate property is mixed together with marital property, it can become marital property. This most often occurs when money that is separate property is deposited into a bank account and mixed together with funds that are marital property. Another way separate property can become marital is if the spouse to whom the property does not belong substantially contributes to the increase in value of the property. That increase in value could be marital property. This type of change can be exemplified by a residence that was separate property of the wife, but the husband may have worked hard on renovations and spent marital funds to improve the house. The husband may be entitled to an equitable distribution of the increase in value that can be traced to his work.

Property division is an important issue in almost every divorce. of property distribution and determine what property needs to be divided.

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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