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Author Archives: Justin Smigelsky, Esq.

New Jersey Divorce & Family Law: Dissipation of Marital Property

Marital fault on the part of one spouse is not one of the factors that may properly be taken into account in determining equitable distribution of marital assets in a given case. However, by statute, the court is required to consider “the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property.” Although the term “dissipation” is not defined in the statute, and “is not susceptible to a precise definition,” case law reveals that “the concept is a plastic one, suited to fit the demands of the individual case.”

Generally, “dissipation” may exist where one spouse utilizes marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage relationship was in serious jeopardy – the facts and circumstances in a particular case must be analyzed to determine whether a given course of conduct constitutes dissipation as contemplated by the statute. Where one party spends marital funds extravagantly or to his or her own benefit, the amount of property available for distribution by the court will obviously be diminished; however, each spouse is generally vested with the authority to spend marital funds for his or her own enjoyment until such time as the parties are contemplating a divorce. As discussed in detail in Kothari v. Kothari, dissipation of marital assets involves an attempt to reconcile these conflicting interests in the marital estate.

In the Kothari matter, the Defendant/Husband sent thousands of dollars to his parents in India, which he asserted was to satisfy his moral obligation to repay money he received from them to finance his medical education and initial passage from India. Although Plaintiff/Wife knew that marital money was being sent, it was clear to the court that she objected to this arrangement. The trial court concluded that, although the parties had accumulated essentially nothing during the marriage, the parties’ funds acquired during the marriage “went somewhere” and, therefore, Plaintiff/Wife was entitled to enjoy a fifty-percent (50%) interest in those assets.

On appeal, the Appellate Division noted that several factors must be considered when one party asserts that marital assets have been dissipated including (1) the proximity of the expenditures to the parties’ separation, (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage, (3) whether the expenditures benefitted the “joint” marital enterprise or were for the benefit of one spouse to the exclusion of the other, and (4) the need for and amount of the expenditure. In affirming the trial court’s determination as to dissipation, the Appellate Division found it clear that the expenditures were not made to benefit the marital enterprise, served only Defendant/Husband’s personal interest, and were designed to divert from Plaintiff/Wife her equitable share of the marital assets. The Appellate Division also determined that, although the marital funds may not have been “in existence” at the filing date of the Complaint for Divorce, a finding of dissipation may necessitate that the asset subject to distribution take the form of a cash indebtedness to be imposed by the court upon one spouse in favor of the other. In regards to marital fault, the Appellate Division approved the trial court’s consideration of Defendant/Husband’s abandonment and callous disregard of his family, not because the conduct reflected marital fault, but because the conduct revealed an intent to deny Plaintiff/Wife her share of marital assets.

Whether or not marital assets have been “dissipated” as contemplated by the statute depends upon the facts and circumstances in a particular case. If you have any questions in regards to divorce in New Jersey, dissipation claims as to marital assets, equitable distribution, or any aspect of family law, you may wish to consult with an experienced attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

 

Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2017 – All Rights Reserved

 

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, Esq. and Justin M. Smigelsky, Esq. represent individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Cliffwood Beach, Keyport, Keansburg, Middletown, Holmdel, Lincroft, Manalapan, Englishtown, Marlboro), Union County (Rahway, Elizabeth), Ocean County (Brick, Jackson, Toms River), Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C.

 

Family Law Practice Areas:

Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications

New Jersey Probate & Estate Litigation: What is Notice of Probate?

Pursuant to the Rules of Court, the personal representative of an estate is required to mail, within sixty (60) days of the probate of a will, notice in writing that the will has been probated. The “notice of probate” must be sent to the decedent’s spouse, heirs, next of kin, other persons (if any) entitled… Continue Reading

New Jersey Probate & Estate Administration: What Is Intestacy?

Pursuant to the New Jersey Probate Code, any part of a decedent’s estate not effectively disposed of by his or her Will passes by “intestate succession” to the decedent’s heirs. The intestate succession statutes provide rules and procedures for the disposition of the estate of an individual who pass away without an effective Will, and… Continue Reading

New Jersey Child Custody: Removal of a Child from New Jersey in Light of Bisbing v. Bisbing

  Following a divorce, removal of a minor child from the State of New Jersey by the custodial parent is governed by N.J.S.A. 9:2-2, which, in pertinent part, provides: When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are… Continue Reading

New Jersey Family Law: Responding to the Complaint for Divorce

  When served with a Complaint for Divorce, a prospective client will ordinarily ask – “what should I do?” Typically, in a New Jersey divorce, there will be four (4) alternatives: File an “Appearance” in which the allegations requesting the divorce are not contested, but contesting the customary issues of the divorce proceedings; File an… Continue Reading

New Jersey Family Law: Irreconcilable Differences as Grounds for Divorce

  New Jersey law has been gradually evolving to allow for easier termination of “dead marriages” regardless of fault. Fault of either spouse has continued to decrease in significance, while the impact of filing for divorce based upon fault is ordinarily not significant. It is important to note that each divorce matter is different, and… Continue Reading

New Jersey Probate & Estate Litigation: Executor’s Power to Compromise, Contest, or Settle Claims

  A Last Will and Testament confers upon every executor thereunder, in the absence of a contrary provision in the Will or in a court order, a wide-ranging set of administrative powers authorizing him or her so to act, provided he or she acts in good faith and with reasonable discretion. Pursuant to the New… Continue Reading

New Jersey Probate & Estate Litigation: “When Will I Receive My Inheritance?”

  In administering an estate, beneficiaries of the estate will routinely ask – “when will I receive my inheritance?” The answer, of course, is – “it depends.” Ordinarily, it will take approximately one year to complete the administration process and, in fact, distribution of an intestate’s property is not supposed to be made prior to… Continue Reading

New Jersey Probate & Estate Litigation: Action to Compel Inventory of the Decedent’s Property

Generally, New Jersey law does not require that an Executor or Administrator file an inventory of the decedent’s assets as a matter of course. However, pursuant to the New Jersey Probate Code, the Court may force an Executor or Administrator to file an inventory of all real and personal property of the decedent “which has… Continue Reading



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Author Archives: Justin Smigelsky, Esq.

New Jersey Divorce & Family Law: Dissipation of Marital Property

New Jersey Divorce & Family Law: Dissipation of Marital Property

Marital fault on the part of one spouse is not one of the factors that may properly be taken into account in determining equitable distribution of marital assets in a given case. However, by statute, the court is required to consider “the contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property.” Although the term “dissipation” is not defined in the statute, and “is not susceptible to a precise definition,” case law reveals that “the concept is a plastic one, suited to fit the demands of the individual case.”

Generally, “dissipation” may exist where one spouse utilizes marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage relationship was in serious jeopardy – the facts and circumstances in a particular case must be analyzed to determine whether a given course of conduct constitutes dissipation as contemplated by the statute. Where one party spends marital funds extravagantly or to his or her own benefit, the amount of property available for distribution by the court will obviously be diminished; however, each spouse is generally vested with the authority to spend marital funds for his or her own enjoyment until such time as the parties are contemplating a divorce. As discussed in detail in Kothari v. Kothari, dissipation of marital assets involves an attempt to reconcile these conflicting interests in the marital estate.

In the Kothari matter, the Defendant/Husband sent thousands of dollars to his parents in India, which he asserted was to satisfy his moral obligation to repay money he received from them to finance his medical education and initial passage from India. Although Plaintiff/Wife knew that marital money was being sent, it was clear to the court that she objected to this arrangement. The trial court concluded that, although the parties had accumulated essentially nothing during the marriage, the parties’ funds acquired during the marriage “went somewhere” and, therefore, Plaintiff/Wife was entitled to enjoy a fifty-percent (50%) interest in those assets.

On appeal, the Appellate Division noted that several factors must be considered when one party asserts that marital assets have been dissipated including (1) the proximity of the expenditures to the parties’ separation, (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage, (3) whether the expenditures benefitted the “joint” marital enterprise or were for the benefit of one spouse to the exclusion of the other, and (4) the need for and amount of the expenditure. In affirming the trial court’s determination as to dissipation, the Appellate Division found it clear that the expenditures were not made to benefit the marital enterprise, served only Defendant/Husband’s personal interest, and were designed to divert from Plaintiff/Wife her equitable share of the marital assets. The Appellate Division also determined that, although the marital funds may not have been “in existence” at the filing date of the Complaint for Divorce, a finding of dissipation may necessitate that the asset subject to distribution take the form of a cash indebtedness to be imposed by the court upon one spouse in favor of the other. In regards to marital fault, the Appellate Division approved the trial court’s consideration of Defendant/Husband’s abandonment and callous disregard of his family, not because the conduct reflected marital fault, but because the conduct revealed an intent to deny Plaintiff/Wife her share of marital assets.

Whether or not marital assets have been “dissipated” as contemplated by the statute depends upon the facts and circumstances in a particular case. If you have any questions in regards to divorce in New Jersey, dissipation claims as to marital assets, equitable distribution, or any aspect of family law, you may wish to consult with an experienced attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

 

Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. / 2017 – All Rights Reserved

 

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, Esq. and Justin M. Smigelsky, Esq. represent individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Cliffwood Beach, Keyport, Keansburg, Middletown, Holmdel, Lincroft, Manalapan, Englishtown, Marlboro), Union County (Rahway, Elizabeth), Ocean County (Brick, Jackson, Toms River), Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C.

 

Family Law Practice Areas:

Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications

New Jersey Probate & Estate Litigation: What is Notice of Probate?

New Jersey Probate & Estate Litigation: What is Notice of Probate?

Pursuant to the Rules of Court, the personal representative of an estate is required to mail, within sixty (60) days of the probate of a will, notice in writing that the will has been probated. The “notice of probate” must be sent to the decedent’s spouse, heirs, next of kin, other persons (if any) entitled… Continue Reading

New Jersey Probate & Estate Administration: What Is Intestacy?

New Jersey Probate & Estate Administration: What Is Intestacy?

Pursuant to the New Jersey Probate Code, any part of a decedent’s estate not effectively disposed of by his or her Will passes by “intestate succession” to the decedent’s heirs. The intestate succession statutes provide rules and procedures for the disposition of the estate of an individual who pass away without an effective Will, and… Continue Reading

New Jersey Child Custody: Removal of a Child from New Jersey in Light of Bisbing v. Bisbing

New Jersey Child Custody: Removal of a Child from New Jersey in Light of Bisbing v. Bisbing

  Following a divorce, removal of a minor child from the State of New Jersey by the custodial parent is governed by N.J.S.A. 9:2-2, which, in pertinent part, provides: When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are… Continue Reading

New Jersey Family Law: Responding to the Complaint for Divorce

New Jersey Family Law: Responding to the Complaint for Divorce

  When served with a Complaint for Divorce, a prospective client will ordinarily ask – “what should I do?” Typically, in a New Jersey divorce, there will be four (4) alternatives: File an “Appearance” in which the allegations requesting the divorce are not contested, but contesting the customary issues of the divorce proceedings; File an… Continue Reading

New Jersey Family Law: Irreconcilable Differences as Grounds for Divorce

New Jersey Family Law: Irreconcilable Differences as Grounds for Divorce

  New Jersey law has been gradually evolving to allow for easier termination of “dead marriages” regardless of fault. Fault of either spouse has continued to decrease in significance, while the impact of filing for divorce based upon fault is ordinarily not significant. It is important to note that each divorce matter is different, and… Continue Reading

New Jersey Probate & Estate Litigation: Executor’s Power to Compromise, Contest, or Settle Claims

New Jersey Probate & Estate Litigation: Executor’s Power to Compromise, Contest, or Settle Claims

  A Last Will and Testament confers upon every executor thereunder, in the absence of a contrary provision in the Will or in a court order, a wide-ranging set of administrative powers authorizing him or her so to act, provided he or she acts in good faith and with reasonable discretion. Pursuant to the New… Continue Reading

New Jersey Probate & Estate Litigation: “When Will I Receive My Inheritance?”

New Jersey Probate & Estate Litigation: “When Will I Receive My Inheritance?”

  In administering an estate, beneficiaries of the estate will routinely ask – “when will I receive my inheritance?” The answer, of course, is – “it depends.” Ordinarily, it will take approximately one year to complete the administration process and, in fact, distribution of an intestate’s property is not supposed to be made prior to… Continue Reading

New Jersey Probate & Estate Litigation: Action to Compel Inventory of the Decedent’s Property

New Jersey Probate & Estate Litigation: Action to Compel Inventory of the Decedent’s Property

Generally, New Jersey law does not require that an Executor or Administrator file an inventory of the decedent’s assets as a matter of course. However, pursuant to the New Jersey Probate Code, the Court may force an Executor or Administrator to file an inventory of all real and personal property of the decedent “which has… Continue Reading

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