07 Jul I’m getting a divorce. What happens to retirement accounts?

Q. I’m getting divorced and I was a stay-at-home mom so I don’t have a retirement plan but my husband does. We also own a home that we both want me to have for the kids, but I also think I should have some of his retirement accounts. How can we make it fair and still keep the house?
— Uncertain

A. We’re sorry to hear about your divorce.

Depending on how you negotiate your settlement, you could be due part of your husband’s retirement plan.

“Adinolfi, Lieberman, Burick, Roberto & Molotsky, PA.” Thanks!!

New Jersey is an “equitable distribution” state, meaning that marital property is divided in an equitable or fair manner between spouses at the time of divorce, said Thomas Roberto, a family law attorney with Adinolfi, Lieberman, Burick, Roberto & Molotsky in Haddonfield.

Marital property is subject to equitable distribution regardless of whether the property is titled in the name of one or both spouses, he said.

The first consideration is whether the assets at issue are considered “marital property.”

“If acquired during the marriage, an asset or debt is generally considered marital in nature,” he said. “There are some exceptions to this, including but not limited to cases involving premarital property and cases where one spouse receives property during the marriage in the form of an inheritance which is not commingled with marital property.”

Premarital and/or inherited property of one spouse which is not commingled is generally exempt from equitable distribution, he said.

With regard to retirement assets specifically, the portion of the retirement asset accumulated during the marriage, and any appreciation on that marital portion, is subject to division between divorcing spouses under New Jersey law, Roberto said.

“The fact that the retirement asset is in the name of only one spouse does not render it immune from equitable distribution,” he said. “So if one spouse has a retirement asset that was acquired entirely during the marriage, the entirety of that retirement asset would be subject to equitable distribution. If only a portion of the retirement asset was earned during the marriage, then only the marital portion would be divided at the time of divorce.”

Real estate receives somewhat similar treatment for purposes of equitable distribution, he said.

If the marital home was acquired during or in contemplation of the marriage, it will generally be subject to equitable distribution between divorcing spouses. If one spouse is to retain the home, that spouse would potentially be ‘buying out’ the other’s interest in the home, Roberto said. That interest, generally, is determined based upon the equity in the home — the value of the home minus the balance of any outstanding encumbrances such as a mortgage, home equity loans or credit lines, he said.

“Depending on the additional facts presented here, the equitable or fair resolution may be for the parties to equally divide both the marital portion of the retirement asset and the equity in the former marital home,” Roberto said. “If there is no equity, or if the home equity and balance of the retirement asset subject to equitable distribution are comparable, then perhaps the appropriate resolution is a trade-off with one spouse retaining the retirement asset outright and the other retaining the home outright.”

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This story was originally published on July 6, 2021.

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