Is New Jersey a Community Property State When it Comes to Pension & Social Security?

By Heather Frances J.D.

During your divorce proceeding, the New Jersey court has authority to divide your marital property, including real estate, personal belongings and some retirement benefits. If you don’t want the court to divide your property, you and your spouse can mutually agree on a division and distribution of marital property, and the court may adopt that division. But New Jersey courts do not have authority to divide Social Security benefits.

Equitable Division of Property

New Jersey is not a community property state. It is an equitable distribution state, so New Jersey divorce courts divide your marital assets in an equitable manner, which means distribution between you and your spouse will be fair but not necessarily equal. Under the rules of equitable distribution, the court can give one spouse a significantly higher share of the couple’s assets rather than splitting them in half equally. Prenuptial agreements may heavily impact the court’s division since the terms of such agreements frequently address how marital property should be divided in a divorce.

Factors for Property Division

If you and your spouse cannot reach a mutual agreement about property division, a New Jersey court considers many factors to reach a property decision. These factors include: the length of the marriage; the spouses’ earning capacities; the age of the spouses; the physical and mental health of the spouses; and the contributions of each spouse to the earning power of the other and acquisition of the marital assets. New Jersey law provides a list of factors the court must consider, but the court is not limited to those factors.

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Divisible Property

Generally, the court has the authority to divide assets acquired during the marriage -- marital assets -- but not assets acquired before marriage or by gift or inheritance. These are considered the separate property of the spouse who acquired them. Marital property may include real estate, vehicles, bank accounts, investment accounts, certain life insurance policies, household furnishings and other personal property. Marital property may also include IRAs, pension plans and 401(k) plans.

Social Security Benefits

The Social Security Administration controls Social Security benefits; thus, New Jersey courts do not have authority to divide those benefits. Instead, the SSA determines in what circumstances divorced spouses are entitled to benefits. You can receive a portion of your ex-spouse’s Social Security benefits -- if he is eligible for benefits -- only if your marriage lasted at least 10 years and you meet other SSA eligibility criteria, such as being at least 62 years old and unmarried.

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