Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Classification of Property in East Brunswick Divorces

The ownership of property can be a contentious issue in divorce cases. Many people do not realize that classification of property in East Brunswick divorces could impact how assets are divided and who gets what. In order to learn about property division, it is important to get in touch with a knowledgeable lawyer. A skilled property division lawyer could fight tirelessly for a positive outcome for you.

Defining Real Property

Real property in the State of New Jersey are things like land, home, a house, structures, franchises, interest in lands, et cetera. The statute also references lands under water called Riparian rights; any and all other things and rights usually incorporated with real property; any and all insurance; and property that is less than the full title of the property, such as easements, right of ways, uses, leases, licenses; any and all incorporeal hereditament; and every estate interest or right in real property.

Within the context of the classification of property in East Brunswick divorces, personal property is not defined by statute, but things that are typically associated under the umbrella of personal property are things that a person can consider within the home itself such as furniture, jewelry, clothing or tangible possessions that they can normally move.

What is Marital Property?

Marital property is property that has been acquired during the course of the marriage or in anticipation of the marriage. So, parties in anticipation of the marriage become engaged or talk about getting married and start to buy a house, they can lump that information into the marital property.

What is a Privately Held Business?

A privately held business is something like an incorporation, an LLC, an S Corp., a C Corp., things that are not public business or something that is not traded, but something that has a few owners rather than shareholders.

Impact of Evaluating a Privately Held Business

The evaluation of a privately held business plays a role in a marital agreement because if it is determined, or assumed, or even questioned, as to whether or not the other party (who does not have an ownership interest in the business) has an interest in, or is entitled to, some equity in the business, they need to get the business appraised. If that is even addressed in the Case Management Order, that has to be processed when parties are going through a divorce as to who is going to be paying for that business appraisal.

Attorneys often decide what appraisal companies to use for the business appraisal. Based on what the outcome of the appraisal is and if the cash flow is a profit or loss for that the business, does depend on whether or not one party proceeds with claiming that they do have an equity stake in that business.

What Does this Mean for Business Ownership?

There is an equity argument that it is held by both parties that, despite the fact that one party may not be the person who is going back and forth to the business or the face of the business, they are entitled to some portion of the business even though they are not married yet.

Defining Joint and Separate Property

When discussing the classification of property in East Brunswick divorces, separate property would be things that are not marital property, e.g., property owned by one spouse such as inheritances. If a great aunt only gave the one spouse an inheritance and did not name the other spouse in that inheritance, the amount that the one spouse receives from the inheritance is a property of the spouse that is named.

Jointly-titled property would be marital essentially; real property that is marital is in both of their names. When a home is in the name of both spouses, that would mean that it is jointly titled.

Marital Homes as Assets

The marital home is the residence in which both spouses were living during the course of the marriage, or in anticipation of the marriage if they acquired the property prior to being married, but have lived there during the course of the marriage. It is common for the marital home to not in both names of the parties for financial reasons, if one party had better credit than the other, and the court understands that.

As a principle of equity, knowing when parties are married or anticipating getting married, they make financial decisions that are in the best interests of both parties and not necessarily preparing for what happens when they get divorced, having one party's name on the mortgage and the title of the property does not prevent the party whose name is not on the title and mortgage from having an equity stake in the property.

Even though the property might not be jointly titled, the marital home is still considered marital property and can be divided between the parties. What that percentage of the division is depends on larger facts in the case and the Global Settlement Terms that the parties have reached. Unlike the community property state where a person would know that they would be receiving 50% of the home, in New Jersey it depends on the principles of equity, the larger facts of the case, and what kind of Global Settlement Agreement they have reached. Even if their name is not on the marital home, they are entitled to some portion of the equity in the home.

Regulations Surrounding Property That is Titled in One Name Only

The regulations concerning classification of property in East Brunswick divorces depends on certain factors. If there is real property that was acquired during the course of the marriage and one party was using the marital funds and intermingling the marital funds with this other property that they own solely in their name; if they put investments into the property; if they increase the property value; if it is a rental property and they intertwine that in the marital funds; then that would be considered marital property as well. If the one party keeps it separate and they own it with someone else, then it might not be a marital property. It depends on the circumstances surrounding that property.If an individual wants to know more about the classification of property during a divorce, they should speak with a qualified property division lawyer that could help.