Equitable Distribution of Marital Assets and Liabilities
The Equitable Distribution Statute in New Jersey generally sets forth the principle that, when parties divide assets and debts, anything which is legally and beneficially acquired during a marriage is subject to distribution, with the exception of inheritance and gifts from third parties. This law adequately provides for couples of the opposite sex, who have always had the right to marry.
However, as we previously discussed in our blogs on January 2, 2022 and January 30, 2022, marriage between couples of the same sex was not established until 2015 when the United States Supreme Court decided the matter of Obergefell v. Hodges. Accordingly, there can be no “marriage” between same sex couples in New Jersey longer than 7 years (at this point, unless they were legally married elsewhere before 2015). Similarly, Civil Unions were not legalized in New Jersey until 2007, with the passage of the Civil Union Act. Therefore, there can be no Civil Unions between same sex couples in New Jersey longer than 15 years (at this point).
Based on the Equitable Distribution Statute, assets acquired prior to the parties’ Marriage or Civil Unions would generally not be subject to distribution, even though a same sex couple’s relationship may be in existence for longer than marriage equality or the civil union statute. This is problematic, as there are many same sex couples that have been in committed relationships (which they personally considered akin to a marriage) for longer than the time in which we have had legalized Civil Unions or Legal Same Sex Marriages in New Jersey. Many of those couples acquired assets during that time which would not be adequately protected under the equitable distribution statute.
In order to make these couples whole when they are dissolving their Civil Union, or Divorcing, creative arguments must be made to find an equitable remedy or alternate dispute resolution may be a better option to find a fair resolution for a couple who finds themselves in such a situation. Contact the attorneys of the Family Law Group at Cohn Lifland to discuss what rights and remedies may be available to you.