If I inherit property is it mine or marital property?

Full Question:

If I inherit a property while married, is the property mine or is it considered 50/50 in New Jersey.
05/14/2007   |   Category: Marriage ยป Marital Property   |   State: New Jersey   |   #4724


New Jersey is an equitable distribution state in which the court, if the parties have not entered into a settlement agreement, will divide the marital property equitably between the parties, taking into consideration many factors such as; the duration of the marriage, the standard of living established in the marriage, etc. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.

The relevant New Jersey statute is as follows:

NJSA 2A:34-23

2A:34-23 Alimony, maintenance.

Pending any matrimonial action or action for dissolution of a civil
union brought in this State or elsewhere, or after judgment of divorce or
dissolution or maintenance, whether obtained in this State or elsewhere,
the court may make such order as to the alimony or maintenance of the
parties, and also as to the care, custody, education and maintenance of
the children, or any of them, as the circumstances of the parties and the
nature of the case shall render fit, reasonable and just, and require
reasonable security for the due observance of such orders, including, but
not limited to, the creation of trusts or other security devices, to
assure payment of reasonably foreseeable medical and educational
expenses. Upon neglect or refusal to give such reasonable security, as
shall be required, or upon default in complying with any such order, the
court may award and issue process for the immediate sequestration of the
personal estate, and the rents and profits of the real estate of the party
so charged, and appoint a receiver thereof, and cause such personal
estate and the rents and profits of such real estate, or so much thereof
as shall be necessary, to be applied toward such alimony and maintenance
as to the said court shall from time to time seem reasonable and just; or
the performance of the said orders may be enforced by other ways
according to the practice of the court. Orders so made may be revised and
altered by the court from time to time as circumstances may require.

The court may order one party to pay a retainer on behalf of the other
for expert and legal services when the respective financial circumstances
of the parties make the award reasonable and just. In considering an
application, the court shall review the financial capacity of each party
to conduct the litigation and the criteria for award of counsel fees that
are then pertinent as set forth by court rule. Whenever any other
application is made to a court which includes an application for pendente
lite or final award of counsel fees, the court shall determine the
appropriate award for counsel fees, if any, at the same time that a
decision is rendered on the other issue then before the court and shall
consider the factors set forth in the court rule on counsel fees, the
financial circumstances of the parties, and the good or bad faith of
either party.

a. In determining the amount to be paid by a parent for support of the
child and the period during which the duty of support is owed, the court
in those cases not governed by court rule shall consider, but not be
limited to, the following factors:

(1) Needs of the child;

(2) Standard of living and economic circumstances of each parent;

(3) All sources of income and assets of each parent;

(4) Earning ability of each parent, including educational background,
training, employment skills, work experience, custodial responsibility
for children including the cost of providing child care and the length of
time and cost of each parent to obtain training or experience for
appropriate employment;

(5) Need and capacity of the child for education, including higher

(6) Age and health of the child and each parent;

(7) Income, assets and earning ability of the child;

(8) Responsibility of the parents for the court-ordered support
of others;

(9) Reasonable debts and liabilities of each child and parent;

(10) Any other factors the court may deem relevant.

The obligation to pay support for a child who has not been emancipated
by the court shall not terminate solely on the basis of the child's age
if the child suffers from a severe mental or physical incapacity that
causes the child to be financially dependent on a parent. The obligation
to pay support for that child shall continue until the court finds that
the child is relieved of the incapacity or is no longer financially
dependent on the parent. However, in assessing the financial obligation
of the parent, the court shall consider, in addition to the factors
enumerated in this section, the child's eligibility for public benefits
and services for people with disabilities and may make such orders,
including an order involving the creation of a trust, as are necessary to
promote the well-being of the child.

As used in this section "severe mental or physical incapacity"
shall not include a child's abuse of, or addiction to, alcohol or
controlled substances.

b. In all actions brought for divorce, dissolution of a civil union,
divorce from bed and board, legal separation from a partner in a civil
union couple or nullity the court may award one or more of the following
types of alimony: permanent alimony; rehabilitative alimony; limited
duration alimony or reimbursement alimony to either party. In so doing
the court shall consider, but not be limited to, the following factors:

(1) The actual need and ability of the parties to pay;

(2) The duration of the marriage or civil union;

(3) The age, physical and emotional health of the parties;

(4) The standard of living established in the marriage or civil
union and the likelihood that each party can maintain a reasonably
comparable standard of living;

(5) The earning capacities, educational levels, vocational skills, and
employability of the parties;

(6) The length of absence from the job market of the party seeking

(7) The parental responsibilities for the children;

(8) The time and expense necessary to acquire sufficient education or
training to enable the party seeking maintenance to find appropriate
employment, the availability of the training and employment, and the
opportunity for future acquisitions of capital assets and income;

(9) The history of the financial or non-financial contributions to the
marriage or civil union by each party including contributions to the care
and education of the children and interruption of personal careers or
educational opportunities;

(10) The equitable distribution of property ordered and any payouts on
equitable distribution, directly or indirectly, out of current income, to
the extent this consideration is reasonable, just and fair;

(11) The income available to either party through investment of
any assets held by that party;

(12) The tax treatment and consequences to both parties of any alimony
award, including the designation of all or a portion of the payment as a
non-taxable payment; and

(13) Any other factors which the court may deem relevant.

When a share of a retirement benefit is treated as an asset for
purposes of equitable distribution, the court shall not consider income
generated thereafter by that share for purposes of determining alimony.

c. In any case in which there is a request for an award of permanent
alimony, the court shall consider and make specific findings on the
evidence about the above factors. If the court determines that an award
of permanent alimony is not warranted, the court shall make specific
findings on the evidence setting out the reasons therefor. The court
shall then consider whether alimony is appropriate for any or all of the
following: (1) limited duration; (2) rehabilitative; (3) reimbursement.
In so doing, the court shall consider and make specific findings on the
evidence about factors set forth above. The court shall not award limited
duration alimony as a substitute for permanent alimony in those cases
where permanent alimony would otherwise be awarded.

An award of alimony for a limited duration may be modified based either
upon changed circumstances, or upon the nonoccurrence of circumstances
that the court found would occur at the time of the award. The court may
modify the amount of such an award, but shall not modify the length of
the term except in unusual circumstances.

In determining the length of the term, the court shall consider the
length of time it would reasonably take for the recipient to improve his
or her earning capacity to a level where limited duration alimony is no
longer appropriate.

d. Rehabilitative alimony shall be awarded based upon a plan in which
the payee shows the scope of rehabilitation, the steps to be taken, and
the time frame, including a period of employment during which
rehabilitation will occur. An award of rehabilitative alimony may be
modified based either upon changed circumstances, or upon the
nonoccurrence of circumstances that the court found would occur at the
time of the rehabilitative award.

This section is not intended to preclude a court from modifying
permanent alimony awards based upon the law.

e. Reimbursement alimony may be awarded under circumstances in
which one party supported the other through an advanced education,
anticipating participation in the fruits of the earning capacity
generated by that education.

f. Nothing in this section shall be construed to limit the court's
authority to award permanent alimony, limited duration alimony,
rehabilitative alimony or reimbursement alimony, separately or in any
combination, as warranted by the circumstances of the parties and the
nature of the case.

g. In all actions for divorce or dissolution other than those where
judgment is granted solely on the ground of separation the court may
consider also the proofs made in establishing such ground in determining
an amount of alimony or maintenance that is fit, reasonable and just. In
all actions for divorce, dissolution of civil union, divorce from bed and
board, legal separation from a partner in a civil union couple where
judgment is granted on the ground of institutionalization for mental
illness the court may consider the possible burden upon the taxpayers of
the State as well as the ability of the party to pay in determining an
amount of maintenance to be awarded.

h. In all actions where a judgment of divorce, dissolution of civil
union, divorce from bed and board or legal separation from a partner in a
civil union couple is entered the court may make such award or awards to
the parties, in addition to alimony and maintenance, to effectuate an
equitable distribution of the property, both real and personal, which was
legally and beneficially acquired by them or either of them during the
marriage or civil union. However, all such property, real, personal or
otherwise, legally or beneficially acquired during the marriage or civil
union by either party by way of gift, devise, or intestate succession
shall not be subject to equitable distribution, except that interspousal
gifts or gifts between partners in a civil union couple shall be subject
to equitable distribution.

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