Fault And The Division Of Property

Frequently, matrimonial attorneys have someone come in for a consultation and offer some variation of the following: “I had an adulterous affair.  My spouse says that because I am at fault for breaking up the marriage, [s]he will get everything. ”  While it is true that in New Jersey there are fault and no-fault grounds for obtaining a divorce, except in the most extreme instances (such as hiring a “hit-man” to kill your spouse), fault in the break-up of a marriage has little meaning in the division of assets or awards of support.  Marital property is divided in New Jersey by what is referred to as equitable distribution.   This does not necessarily mean that assets are automatically divided on a 50/50 basis.  Rather, “equity” is a term for fairness and the Court will make a fair allocation and distribution of all marital property.  For purposes of equitable distribution, the Court must determine 1) what assets are subject to equitable distribution; 2) what the assets are worth; and 3) what percentage of each asset each party should receive.  The Court must also consider certain factors enumerated in the New Jersey statute on the equitable distribution of property, which include (but are not limited to) duration of the marriage, the income or property brought to the marriage by each party, the economic circumstances of each party at the time the division of the property becomes effective and the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property.  Finally, there are also three exclusions from equitable distribution, regardless of fault:  1) assets which are premarital or can be traced to a premarital contribution; 2) inheritances received by one party during the marriage; and 3) gifts from third persons.   Of course, there are nuances to the application of the above that your attorney must discuss with you.    

The bottom line is that marital fault in being the one whose conduct led to the emotional/psychological breakup of the marriage, while an emotional issue for one or both of the parties in a divorce, will have little to no effect on the final resolution of one’s divorce case.


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