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Who Gets the House In a New Jersey Divorce

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You hear it on television or from your friends: “She/he got the house in the divorce.” The marital home is often a hotly contested asset in a divorce, especially if the couple has been together for a long time, has shared children, and both parties have put equity in the home. How does a New Jersey court or arbitrator determine who gets the house if the parties cannot agree? Continue reading to learn how real estate assets are apportioned in a New Jersey divorce, and contact an experienced New Jersey marital property division attorney with any questions or for help with a New Jersey family law matter.

Options for “dividing” the marital home

New Jersey is an equitable distribution state. This does not mean that each party gets an even, equal share of marital assets in a divorce. Rather, it means that assets are distributed according to the principles of equity, or fairness. For marital assets, the percentage of value each spouse gets will depend on factors such as the length of the marriage, their contribution to the value of the assets (such as the increase in value to the home), or providing other services such as homemaking.

If you have been married for a long while and share ownership of the house, then the home is likely marital property, and you will pick one of several options to deal with the house: Arrange a buyout from one spouse to the other, continue to co-own the house, or sell the house and divide the proceeds. If one spouse can afford a buyout and is inclined to keep the home, they can buy the other spouse’s equity as part of the divorce settlement. Usually, the buying spouse will agree to refinance the loan, and the mortgage loan will end up in the buying spouse’s name.

The parties can also keep the status quo and co-own the home. This approach is common where a divorce involves high school-aged children, and it is preferable to keep the kids in the same house until they leave for college. One party will typically agree to move out, but both will retain ownership. This approach requires that the divorced parties cooperate, and it can be difficult if the divorce is emotionally-charged or contentious.

Finally, the easiest option: Sell the house and divide the proceeds. If there are no children, or the children are very young, and neither party has extremely strong ties to the home itself, it can be easiest to simply sell the home and divide the proceeds as part of the marital settlement. The division can be equal, or one spouse can take a greater share in exchange for giving up other marital assets. Often neither party can afford to buy out the other party, leaving this method as the best option.

Can I protect my house from a divorce?

The equitable division of property applies only to marital property. Separate property, meaning assets and debts acquired before the marriage or after filing a complaint for divorce, is not divvied up. Anything that you can legally classify as your separate property will not become subject to the property division. In addition to property acquired before marriage or after separation, separate property may include property you obtain during the marriage via inheritance or gifts (from someone other than your spouse) that is clearly intended for you and you alone, rather than for your family.

To keep your house out of the marital property set, you would want to make a strong case that the house belonged to you and you alone, outside of the marriage. If you purchased the house before marriage, using your premarital funds as a down payment, and kept the title to the property in your name, you may be able to classify the house as separate property.

Most parties will end up continuing to pay the mortgage using marital funds, which muddies the waters. Now at least some of the equity in the home appears tied up in marital property, subjecting at least part of the home ownership to division. If you continued to pay the mortgage during the marriage, other factors affect whether the house may yet be kept out of equitable division: Did you purchase the home with the expectation/intent that your future spouse would live there with you? Did your spouse share in paying expenses and helping with upkeep? Did your spouse live in the home? Did your spouse’s contributions increase the value of the home? Even if the other spouse did not contribute directly to the mortgage, if the answer to these questions is yes, then your spouse may have a claim to up to half of the equity your home acquired during the marriage.

Contact a New Jersey Family Law Attorney

If you’re in need of compassionate, experienced, and talented legal help with alimony, divorce, or other family law matters in New Jersey, contact the Union offices of family law attorney John B. D’Alessandro at 908-964-0102.

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