The New Jersey Equitable Distribution statute is remarkably open-ended as to facts the Court may consider in making a fair, equitable and just award. The factors to be considered in an award of equitable distribution include the following:
“ In making an equitable distribution of property, the court shall consider, but not be limited to the following factors:
(a) The duration of the marriage & total length of the relationship.
(b) The age and physical & emotional health of the parties.
(c) The income or property brought to the marriage by each party (premarital assets are exempt unless placed in both parties‘name)
(d) The [ “marital lifestyle” ], i.e. the standard of living acquired during the marriage; and the ability of each party to maintain a reasonably comparable standard of living as to that enjoyed during the marriage.
(e) Pre-marital and mid-marriage Agreements affecting finances.
(f) The economic circumstances of each party at the time of distribution.
(g) The (current) income and (imputed) earning capacity of each party, Imputation of income considers: the educational background, training, (employability) employment skills, work experience, length of absence from the job market (custodial responsibilities for children, the time and expense necessary to acquire sufficient education or training to ... become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
(h) The contribution by each party to the education, training or earning power of the other.
(i) The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property; as well as the contribution of a party as a homemaker
(j) The tax consequences of the proposed distribution to each party.
(k) The present value of the property.
(l) The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects.
(m) The debts and liabilities of the parties.
(n) The need for creation now or in the future of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children; or to secure a stream of income for family support.
(o) Any other factors that a Court would factor in to its decision to achieve a fair and equitable distribution of assets and debts.
(p) Any other factors which the court may deem to be relevant.
“ In every case ... the court shall make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation and equitable distribution, including specifically, but not limited to, the factors set forth in this section.
The New Jersey Supreme Court first interpreted the Equitable Distribution in a trilogy of cases decided in 1974: Painter v. Painter, 65 N.J. 196 (1974) held that the statute could not be interpreted literally since this would require valuation and distribution of all assets “acquired during the marriage” up till the date of divorce. Painter established the general rule that the cut-off date for valuation is the Complaint filing date. Rothman v. Rothman, 65 N.J. 219 (1974) sets forth the three step process for identifying assets subject to distribution, valuing the assets, and effectuating the sharing of such assets.
In DiGiacomo v. DiGiacomo, 80 N.J. 155 (1974) the Supreme Court held that the filing date of the divorce is not invariably the termination date for equitable distribution.
In Borodinsky v. Borodinsky, 162 N.J. Super.437, 443 (App,Div.1978) the Court held that trial judges have broad discretion in resolving equitable distribution issues. Steneken v. Steneken, 367 N.J. Super. 427, (App. Div.2004).
In Brandenherg v. Brandenberg 83 N.J. 198 (1980), a case now over 40 years old, the Supreme Court held that asset valuation should not be retroactive to the date of the parties’ separation, while noting that New Jersey is not a community property state requiring equal sharing of all asscts acquired during the marriage. This seemingly inviolate rule has been eroded by later case law.
In Bednar v. Bednar, 193 N.J. Super. 330 (App.Div.1984), the Appellate Court instructed trial judges to pick one date as the cut off date for valuation of assets. The thread or justification for asset sharing set out in Rothman holds that “ home makers” - i.e.dependent spouses not employed outside of the home - have an entitlement to equitable distribution as does the wage earner who purchased a “marital” asset.
A trial judge has broad discretion in determining how to divide marital assets that have been identified by the parties to the action. Wadlow v. Wadlow, 200 N.J. Super. 372, 377 (App. Div. 1985). There is no presumption that marital assets should be distributed equally. Rothman, supra, 65 N.J. at 232 n.6. However, it is presumed that each party contributed to the marital enterprise. Perkins v. Perkins, 159 NJ. Super. 243, 247
(App. Div. 1978). Even if the acquisition of property may be traced more directly to one party than the other, the distribution must reflect both the non-pecuniary and the pecuniary contributions to the marriage. Ibid. This reflects " the concept that marriage is a shared enterprise, a joint undertaking, that in many ways it is akin to a partnership." Rothman, supra, 65 N.J. at 229. In Valentino v Valentino, 309 NJ super 334, 339 (App.Di.v 1998) an equitable award of 10% of the marital portion of an asset was upheld. Esposito v. Esposito, 158 N.J. Super 285, 291 (A.D.1978) exemplifies the three step process the trial court must utilize in distributing marital property. In Esposito the Appellate Division exercised original jurisdiction and decided the issue after the trial judge had passed away, granting “the wife” substantially less than 50% of a marital asset. So there is no automatic right to assets being split (shared) equally as would be the case if we were in California which is labeled a “community property” state; meaning assets acquired during the marriage are shared equally.
Commentaires