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Unused Vacation Time – Marital Assets

Marital assets are property acquired during the marriage which is subject to equitable distribution. A house, a business, stock options or a pension acquired during the marriage is marital property and will be equitably divided in a divorce.

A spouse’s employer may provide an enforceable right to terminal leave and other benefits. This can consist of unused vacation time, accrued sick leave and personal days in which the employee is eligible to be paid for this unused time.

A typical example is vacation and sick benefits a public employee in the State of New Jersey may have and is allowed to accrue. If such leave time can be identified at the time of dissolution, a trial Court should consider such value when equitably dividing the marital estate.

A recent trial Court’s decision to consider the value of the husband’s accrued leave was not supported by a higher Court because there was no competent evidence to establish that he had an enforceable right to payment for such leave. If there is a right to payment in a case where the spouse is due to retire, at or near the time of dissolution, it is possible to ascertain how much leave time has accrued and what payment will be made to the employee.

For example, if at the time of retirement, the employee has one hundred days of accrued leave for which he will be paid in one lump sum, this can be worth over three months of pay.

The Court should be made aware of the asset for it to be split. If in contemplation of divorce an employee uses up this time just before retirement and at the same time fails to support his family, he is dissipating a marital asset.

The Court may offset the amount dissipated to benefit the deprived spouse or family. A major factor in that scenario is the failure to provide support, keeping the money for himself.

There are also other assets which have substantial value and should not be overlooked such as airline miles and credit card points for which a value may be determined and potentially split.

It is important for the attorney to conduct thorough discovery so that there is an accurate identification of assets.

Tanya N. Helfand, Esq. concentrates in Family Law, she is a Certified Matrimonial Attorney and mediator. The firm welcomes your questions and inquiries at [email protected]. Everything is confidential. This article is not legal advice. Please consult an attorney.

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