You have filed for divorce. Your wife is from Belgium and when you married, she owned property there. But during the marriage, you have been jointly paying expenses for the property. Is this a marital asset? Are you entitled to assert a claim for foreign assets as a part of your divorce?
Whether Property is Matrimonial Property
Many times in divorce cases, it is unclear what assets are marital property subject to equitable distribution. The longer the marriage, the more difficult making the determination. When it comes to matters of the heart, there is the tendency to blend resources. However, you may later learn that it is extremely important to keep exempt assets separated.
Once a spouse mixes exempt assets and marital assets, it may be impossible to determine what percentage of the property actually consists of exempt assets. A prenuptial agreement is useless unless the exempt assets are kept separate from the marital assets.
Generally, spouses have greater entitlement to what is known as matrimonial property. This would include money made during the marriage and assets used and enjoyed during the marriage, such as the family home. The court may determine that property held abroad by one spouse that was attained prior to marriage may not be deemed to be matrimonial property and thus may be exempt from financial settlement. However, if the other spouse contributed to its maintenance and expense, it may be deemed a marital asset.
Is the Foreign Property a Marital Asset?
In New Jersey, N.J.S.A. 2A:34-23.1 indicates that any property owned individually before the marriage remains the separate property of that spouse. Furthermore, if it increases in value during the marriage, neither that increase nor any income from the property, any property secured in exchange for that property, or the proceeds from its sale would be subject to equitable distribution. It remains the separate property of the sole owner in a divorce.
Finding out what assets are subject to equitable distribution is generally an extremely tough task. All property owned by either or both spouses is presumed to be marital property. However, there are circumstances when it can be exempt from distribution; see Painter v. Painter, 65 N.J. 196 (1974). Be aware that the burden of proof for the exemption claim is on the party claiming it is a marital asset.
Effecting a Division of Marital Property
Even after international property has been valued and either the court has ordered a property division or the spouses have agreed to settle, it can be difficult to complete the division process. In the case of an uncooperative ex-spouse, getting the necessary paperwork completed to effect the transfer can be extremely difficult. Further, most foreign countries won’t enforce a court order for divorce in a U.S. case.
Seek Out Help
Getting divorced is frequently a difficult time at best. The process becomes more involved when there are overseas assets to consider. International property could be subject to the laws and procedures of the country where the property is located, as well as NJ divorce law and federal tax law.
Additionally, while our courts have procedures for obtaining information about property in divorce cases, many other countries do not. In fact, property may be located in countries which have controlled privacy safeguards that are nearly impossible to penetrate. Sorting through the perplexity of these laws can drag out the process significantly, in addition to increasing the expense.
If you are contemplating divorce and feel you are entitled to an interest in your spouse’s international property, it is important to make your attorney aware of the existence of property in another country. That way, he or she can begin researching the issues and arrange for proper valuations.