No. If you elect to move out of the marital home during the marriage, you do not lose any of your rights to the equity in the home. Ultimately, your rights to the home are determined by the factors set forth under the equitable distribution statute N.J.S.A. 2A:34-23.1, which includes the following:
- The duration of the marriage or civil union;
- The age and physical and emotional health of the parties;
- The income or property brought to the marriage or civil union by each party;
- The standard of living established during the marriage or civil union;
- Any written agreement made by the parties before or during the marriage or civil union concerning an arrangement of property distribution;
- The economic circumstances of each party at the time the division of property becomes effective;
- The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage or civil union;
- The contribution of each party to the education, training, or earning power of the other;
- The contribution of each party to the acquisition, dissipation, preservation, depreciation, or appreciation in the amount or value of the marital property or the property acquired during the civil union as well as the contribution of a party as a homemaker;
- The tax consequences of the proposed distribution to each party;
- The present value of the property;
- The need of a parent who has physical child custody to own or occupy the marital residence or residence shared by the partners in a civil union couple, and to use or own the household effects;
- The debts and liabilities of the parties;
- The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, partner in a civil union couple, or children;
- The extent to which a party deferred achieving their career goals; and
- Any other factors which the court may deem relevant.
In the event that a home was owned by one party before the marriage, there are factors which must be considered to determine whether the home will be considered exempt or will fall under equitable distribution. Even a home that was owned by one party prior to the marriage and is still solely owned by that party could be subject to equitable distribution in a divorce. If there were contributions paying down the mortgage during the marriage or improvements paid for with marital funds during the marriage, the non-titled spouse may have a claim for equitable distribution. However, equitable distribution does not automatically mean a 50/50 split or an equal division.
Although moving out of the home during a divorce does not alter one’s ownership interest or equitable distribution rights, moving out of the home can result in the party remaining in the home having sole possession of the home until the divorce is final. A party should consider this and should consult with an attorney prior to moving out of the marital home during the divorce.
William J. Rudnik. is a family law attorney at Gebhardt & Kiefer, P.C. where he successfully represents clients in Family Law court in matters involving divorce, property division and more.