How Property Distribution in Divorce in New Jersey is Like a Popular Old Saturday Night Live Skit

The way that "Equitable Distribution" of marital property actually ends up happening in many divorce cases in New Jersey is like a scene right out of a 1970's episode of "Saturday Night Live."

John Belushi is playing a counter clerk in a typical 1970's luncheonette.

Every time a customer comes in, the same senseless routine is followed.

The customer looks at the menu, takes some time to decide what he wants to order, and then orders carefully, item by item, while John Belushi meticulously writes the order down.

Then Belushi looks over his shoulder and, totally ignoring everything that the customer just ordered, yells back at the cook, "cheeseburger, french fries, coke!".

Far too often the New Jersey Divorce System works similarly when it comes to equitable distribution of property.

Here's what I mean.

Just like there is a menu of choices in the "Saturday Night Live" scene that people think they get to select from, there is a "menu" of factors that are supposed to be considered when equitable distribution of property is worked out.

These factors are:

a.The length of the marriage;

b.The age of the parties;

c.The physical health of the parties;

d.The emotional health of the parties;

e.The income brought to the marriage by each party;

f.The property brought to the marriage by each party;

g.The standard of living established during the marriage;

h.Any written agreement made by the parties before the marriage concerning an arrangement of property distribution;

i.Any written agreement made by the parties during the marriage concerning an arrangement of property distribution;

j.The economic circumstances of each party at the time the division of property becomes effective;

k.The income and earning capacity of each party, including:

      1.) educational background,

      2.) training,

      3.) employment skills,

      4.) work experience,

      5.) length of absence from the job market,

      6.)custodial responsibilities for children, and

      7.) 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.

      8.) The contribution by each party to the education, training or earning power of the other;

      9.) 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;

     10.) The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property;

     11.)  The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property;

     12.) The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property;

     13.) The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property;

     14.) the contribution of a party as a homemaker;

l.The tax consequences of the proposed distribution to each party;

m.The present value of the property;

n.The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects;

o.The debts of the parties;

p.The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse, or children;

q.The extent to which a party deferred achieving their career goals; and

r.Any other factors which the court may deem relevant.

The statute requires that the Court shall make specific findings of fact on the evidence relevant to all issues pertaining to:

-asset eligibility or ineligibility;

-asset valuation; and

-equitable distribution.

The statute goes on to say that "It shall be a rebuttable presumption that each party made a substantial financial or non-financial contribution to the acquisition of income and property while the party was married."

In those relatively rare circumstances, it is true that the Court will analyze the equitable distribution factors listed in the New Jersey equitable distribution statute as it is supposed to do, and apply the facts of that particular case to the equitable distribution factors, in coming up with its distribution of property.

But in most cases, it doesn't work out that way at all, in my experience here in New Jersey as a New Jersey divorce lawyer for 33 years.

Rather, what usually happens is like that "Saturday Night Live" skit.

First, the parties, find out from their lawyers what the law is. The lawyers' job is to explain the equitable distribution statute to the client.

Then, if the parties are unable to settle the case quickly, the parties appear at an Early Settlement Panel.

At some point during settlement negotiations, the parties are often told that because marriage is an "economic partnership" (per the above-statute), they might just want to treat each other as equals and share all "marital property" (ie, property that was acquired during the marriage) equally. 

This normally includes that portion of any retirement accounts that were accrued during the marriage, real estate, stocks, money in the bank, and other forms of property, unless there is a really strong reason why they should not do so.

So, like in the John Belushi skit, after the lawyers spend all that time writing down what the various assets are, what each person's contribution toward the acquisition was, and similar such information, the lawyers essentially yell, "Cheeseburger! French fries! Coke!" by recommending to their clients that they split all "marital assets" 50-50.

Now there certainly are exceptions.

And this "reality" is not at all sanctioned by the Court.

Rather, the Court's position is that the equitable distribution statute should be consulted in all cases, and there is no preferred easy way to use a formula of any type to avoid the need to carefully analyze the facts of a case.

And certainly in cases that go to trial before a judge or an arbitration before an arbitrator, that is precisely what happens.

Additionally, if there is a good faith reason why assets should not be shared equally, that argument always is worth making in settlement discussions.

But at the end of the day, my experience over the past 35 years is that many, many, many cases settle at or close to a 50/50 split of all "marital assets" (ie, assets earned by either party between the date of marriage and the day that one party filed for divorce.)