MARITAL and SEPARATE PROPERTY

NOTE : The following explanation is meant to provide an overview of the Law of Equitable Distribution and its interpretation in the existing case law. It is not meant to be all inclusive nor is it meant for any person to rely upon.

MARITAL PROPERTY : All property acquired by either or both spouses during the marriage and BEFORE the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.

SEPARATE PROPERTY : Property acquired before marriage or property acquired by bequest, devise or descent or by gift from a party other than the spouse. Compensation for personal injuries. Property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions of the other spouse. Property described as such by written agreement of the parties.

CASE LAW DECISIONS :
.....1. If the marriage isn't terminated, the court has no authority to divide property.
.....2. Separate property can be transmuted into marital property by co-mingling it with other marital assets.
.....3. Gifts from one spouse to the other during the marriage are marital property.
.....4. Disability benefits which represents deferred compensation is marital property.
.....5. Contributions as parent and homemaker may be viewed as contribution to separate property where they enable the other spouse to devote time and energy necessary to cause separate property to increase in value (often a business).

MAINTENANCE :
Formerly known as alimony. Is granted to non-wage earning or lesser wage earning spouse upon consideration of various factors:

.....1. Income and property of the parties, including property distributed.
.....2. Duration of marriage and health of both parties.
.....3. Present and future earning capacity of both parties
.....4. Ability of party seeking maintenance to become self-supporting and period of time and training necessary.
.....5. Reduced or lost lifetime earning capacity of party seeking maintenance as result of having foregone or delayed opportunities during marriage.
.....6. Presence of children of marriage in homes of parties.
.....7. Tax consequences to the parties.
.....8. Contributions and services of party seeking maintenance.
.....9. Wasteful dissipation of marital property by either spouse.
.....10. Transfer made in contemplation of matrimonial action without fair consideration.
.....11. Any other factor which court shall find to be just and proper.