How is it determined which of our property is marital and which is separate?

By Bari Zell-Weinberger
December 16, 2013
NJ FAQs/Legal Issues

For purposes of equitable distribution in a New Jersey divorce, marital assets include money and property that spouses acquire either separately or together during marriage, regardless of how property may be titled. Similarly, marital debt includes debt incurred by either or both spouses during marriage, although courts will sometime treat debt that has dissipated marital assets (gambling debt, for example) as separate debt of the responsible spouse. Property or debt that one spouse brings into marriage, as well as property one spouse inherits or receives as a gift (from a person other than the spouse) either before or during marriage, or purchases with other individually owned property, is generally treated as separate property. If marital assets or marital labor contributes to an increase in value of a separate asset, however, part or all of that increase could be considered marital property.

A spouse alleging that any property owned on the date a divorce complaint is filed is separate rather than marital will have to produce evidence. This can be complicated. If separate property has been mixed ("commingled") with marital property, the separate origin must be clearly traced with financial or title records.

Courts can interpret commingling as evidence of intent to change, or "transmute," separate property into marital property. Transmutation can also be accomplished through a prenuptial or postnuptial agreement. A spouse can transmute a marital home that was originally separate property into marital property simply by changing title to the property during marriage to include both spouses as "tenants by the entireties."

This just a brief overview of marital and separate property in New Jersey equitable distribution. Consult a knowledgeable attorney for specific information.


Bari Zell-Weinberger is a Certified New Jersey divorce lawyer and partner with the firm of Weinberger Divorce & Family Law Group, LLC. in Parsippany, New Jersey, where she exclusively practices family and matrimonial law.

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December 16, 2013
Categories:  FAQs

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