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Protecting Family Heirlooms and Other Assets in a Divorce
How can I protect my family heirlooms in a divorce proceeding?
The answer to your question depends upon what type of assets are at issue, and when and how they were acquired, and whether or not your spouse played any part in increasing their value. In New Jersey all property except for gifts and inheritances that are acquired once you become married is considered marital property. All other assets that you had before the marriage, or that are or acquired before or during the marriage by gift or inheritance are considered to be your own separate property. The law of equitable distribution can become very complicated if there is commingling of your separate property with marital property, or if your spouse helped to increase the value of your separate property.
How will the court distribute a separate marital asset when it has been commingled?
The court will analyze and review the value of your separate property on the dates either when you were married or when it was commingled. The court will also analyze when and how your spouse helped to increase its value. In the typical divorce case, the court will try to determine how much value your spouse contributed to the asset. Thereafter, the court will try to apportion a fair split of that asset.
How can I protect a family heirloom in my divorce case?
Family heirlooms are some of the more easy types of assets to protect from commingling. The major rule is that you should always try to avoid commingling your assets with your spouse. However, this is easier said than done! Therefore, if you have inherited a stock portfolio, then you and your spouse should never trade in and out of that portfolio. This same rule also applies to savings account, a CD, a trust account, a checking account, a mutual fund, or any other type of any asset that you own. Nonetheless, if you should happen to commingle these assets, then you can still protect your separate property as long as you can prove or trace the money from your separate account.
What happens if you take a certain amount of money from your separate property and invest it into a home for you and your spouse?
One again, you will be required to trace and to prove that your separate property was part of the original purchase price of the home. It is always highly advisable to keep your checks and other records. Most New Jersey courts will give a spouse a dollar-for-dollar credit only for the amount of money that he originally put into the home, even if it increased in value.
Nonetheless, a countervailing view could be that the down payment was a gift to the marriage. Some courts court may treat your separate property contribution as a gift that you have made to you and your spouse and to the marriage. Therefore, it is always a possibility that he may treat commingling of separate property with other assets as a gift or a partial gift.
To file for divorce in New Jersey under no-fault grounds, the couple must have been living separate and apart in different residences for at least 18 consecutive months. There must be no hope of reconciliation in the marriage.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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