Equitable Distribution of Marital Home

The immortal George Carlin once said, “That’s the whole meaning of life, trying to find a place for your stuff. That’s all your house is, just a place for your stuff while you go out and get more stuff.”

In the context of Family Law, the topic of personal property is rarely discussed and consistently dismissed by the court and counsel. It is clear that both view personal property as being simply stuff. In fact, it has been assigned multiple euphemisms to it in order to deflate its relative importance. We have all heard the dismissive terms: chachka; accoutrement; trinket; fixture; knick knack; and of course, whatnot- a word specifically designed to describe all the things the item is actually not. In addition, there is often such contempt for personal property that we have created an amalgamation, personalty, simply in hopes of accelerating the process of distributing it by reducing the length of the term, itself.


Continue Reading Personal Property: From Picayune to Precious, Distributing the Immaterial Possession

Last year, we published a post entitled He Who Hesitates (To Sell Former Marital Home) May Have Lost.  However, the Supreme Court disagreed in Sachau v. Sachau decided May 11, 2011.

In Sachau, the marital home was supposed to be sold on a triggering event, the emancipation of the youngest child, which in this case was in 1984.  The house wasn’t sold then but in 1990, the wife began making inconsistent payments at inconsistent intervals to the husband through 2004 totalling almost $80000.  When the husband became unable to support himself, he filed a motion to compel the sale of the house in 2006.

Without getting into the legal steps it took to get to a hearing, the trial judge ultimately concluded that there was no agreement between the parties in respect of the valuation date and that the 1984 value of the home was $120,000 and that was the valued to be used.  As such, the husband’s share was filed at  $144,915.62 (which included interest) and the wife’s share was $417,472.64. The judge further determined that the wife would be credited for payments made. Moreover, the judge noted that the equities were in parity and that “the passage of time ha[d] not caused a change in position to the
detriment of [Barbara].” The husband appealed, and as noted in our prior post, the Appellate Division affirmed.


Continue Reading Supreme Court Says That Unless You Specifically Agree Otherwise, Date of Value for a House is the Date of Distribution

In September of 2008, I posted a blog entry on The Value of Real Estate – Problems in this Ever Changing Market.  In that post, given the decline in the real estate market, it was posited that retaining the marital home may not be the best financial strategy.  Unfortunately, little has changed in the real estate market since that time to change conclusions of that post.

That said, in many cases, the marital home remains the single largest asset to divide in divorce.  Moreover, with the continuing troubles in the economy, it may represent the only way for either or both of the parties to wind up with liquid funds after the divorce.  Now if the home is going to be sold, or one party is going to buy out the other, then there usually is little dispute other than logistics of sales price, how soon to reduce the price, how to handle repairs until sale, etc. 

The problem arises if one party wants to defer distribution to allow the child(ren) to finish high school, etc.  There is a question of fairness to the other spouse whose equitable distribution is tied up as may be their ability to buy a house of their own both (1) because they don’t have the money for a down payment until they get their share of the house or (2) they are still on the mortgage of the marital home.  Further, due to the decline in the real estate market, parties are now also agreeing to defer the distribution for some period of time in hopes that the market will rebound, as opposed to selling now.


Continue Reading EQUITABLE DISTRIBUTION OF THE MARITAL HOME – MANY WAYS TO SKIN THE CAT