Legal Guide

Family Law Questions

Q. If I own my own business prior to my marriage, will my spouse share in the value of that business in the event of a divorce?

A. Probably, if the business appreciates in value during the course of the marriage. As a general rule, assets that you bring into a marriage remain with you in the event of a divorce. However, there are exceptions. For example, if you bring a business into the marriage it is not unusual for your spouse to be entitled to share in the appreciation of the value of the business during the course of the marriage. Your spouse's right to share in this appreciation is based on your spouse's contribution to the business and may even include a contribution as a homemaker. The rules governing this issue are very fact sensitive and should be discussed with an experienced matrimonial attorney.

Q. How can I best protect my premarital business in the event of divorce?

A. The best tool to protect your interest in a premarital business is a legally enforceable prenuptial agreement. Distribution to your spouse of a portion of your premarital business will require an expensive valuation process. The court will require a determination of the value of your business as of the date of marriage as well as of the date of the divorce complaint to determine how much appreciation occurred during the course of the marriage. To avoid this expensive process, a legally enforceable prenuptial agreement can establish each spouse's rights in the event of a divorce. In order for such an agreement to be legal and enforceable the following is required:

• 1. Each party must have separate independent counsel.
• 2. Each party must fully disclose his or her assets and income as of the date of the agreement.
• 3. The agreement cannot be so one-sided as to shock the conscience of the court.

The purpose of the agreement should not be to provide one spouse an advantage over another. Instead, it should create a mechanism for addressing what may be a complicated issue on an inexpensive and fair basis.

Q. Is an inheritance subject to distribution in a divorce?

A. Generally an inheritance is not subject to distribution in a divorce. However, it is important that the inheritance be kept segregated and not intermingled with marital funds. If it is placed in an account where you also deposit marital earnings, the entire account can be distributed by a court in a divorce. The court will take into consideration that a portion of the money represented an inheritance in determining the percentages to be allocated to each spouse. However, if the inheritance is always kept separate from marital funds the court will not distribute any portion of it to your spouse.

Q. Will my spouse always receive 50% of any property that I acquired during the course of the marriage?

A. No. In New Jersey the court looks at each asset and determines what percentage to allocate to each spouse based on numerous factors. This makes it necessary to analyze each asset separately to make certain that any arguments available to support a distribution different than 50% is made to the court.

Q. Is mediation the best way to settle a divorce case?

A. Frequently, mediation is a good tool to reduce the costs connected with divorce. However, if your spouse has a strong personality and is more knowledgeable about your financial affairs, you may be at a disadvantage in mediation. In any event, even if you utilize a mediator, before you finalize a settlement you should definitely review all aspects of the settlement with an attorney.

Szaferman, Lakind, Blumstein, & Blader, P.C.
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