Marital Residence

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

We have all seen and heard those familiar words in the title of this entry in moves or on TV.  This is part of the "Miranda" warning administered by a police officer when they are arresting someone.  Do these words also have a place in divorce court?  Not in the same way, but in reality they do.

Other than settlement communications, attorney/client and other privileged communications, everything else is just about fair game.  That is why Facebook, emails and texts have become such a treasure trove in divorce cases as people freely put things in writing that they might not otherwise say, and perhaps even broadcast it to the world.

But what about what you say in another court in another case?  Can that be used against you?  Sure can.  The concept is called judicial estoppel, and it was on display again yesterday in the unreported (non-precedential) decision from the Appellate Division in Romano v. Romano.

Without getting in to all of the details of this case, the relevant details relating to judicial estoppel are as follows,  On the wife’s name was on the deed of the marital home, a finding made by a judge during a domestic violence trial, despite the husband claiming he was on the deed.  Thereafter, the husband filed for bankruptcy relief.  In that filing, he answered "none" on the part of petition asking if he had a legal or equitable interest in any real property.  In the later divorce case, he listed the aforementioned home as a marital home subject to equitable distribution. 

The trial judge awarded the home to the wife based on the husband’s representation to the bankruptcy court that he had no interest in the property.

Continue Reading Everything You Say Can and Will Be Used Against You in a Court of Law – Especially if you said something different in another court

An interesting issue was recently considered by the Court in the case of Muller v. Muller. Specifically, the Appellate Division examined whether a husband could compel the sale of the marital home when he had conveyed his interest by way of deed about ten years earlier, but the parties’ Property Settlement Agreement (“PSA”) had provided for the husband’s continued ownership.

The parties in Muller were married for 17 years. When they divorced in 1990, they entered into a PSA, which, in part, provided as follows:

A. Husband and Wife agree to divide equally the personalty . . . upon sale of the premises or child’s emancipation, whichever shall first occur.
B. Upon execution of contract of sale of the above premises, Husband agrees to put his interest in the marital home in trust for Child.
. . . .

A. Husband agrees to pay the mortgage payments [on the marital home] . . . until the time that child graduates from college, or reaches the age of 22, whichever shall first occur[.]

The husband paid the mortgage from the time of the divorce until around 1999 when he defaulted on the payments. The mortgagee instituted foreclosure proceedings in or around July of 2000. In order to avoid foreclosure, the wife borrowed about $60,000 and refinanced the property. The husband executed a deed and conveyed the wife his ownership interest in the property for consideration of $50,000. As a result, the wife exonerated him of the debt the he had incurred by defaulting on the mortgage payments. At the point, the child was 21 years old and had graduated from college.

Continue Reading Did a Property Transfer Occur? Husband Could not Rely on the Property Settlement Agreement to Compel the Sale of the Marital Home Because the Deed Controlled.

We are in the midst of the Spring real estate season and this is the time during a divorce when one spouse will inevitably want to list the marital home for sale. Often times, the parent likely to be the primary custodial parent will offer resistance with the best of intentions, because he or she wants to keep the house for the kids.

I am often approached by a client who tells me that they are willing to give up other assets in order to maintain the marital home. This may be for a variety of reasons, but most often because a parent wants to minimize the trauma of the divorce on the children and believes that remaining in the home that they have grown up in is the way to accomplish that.


But, at what cost? While minimizing transition for the kids is an admirable goal, I find that in many cases, the person who wants to stay in the house does not truly understand the expenses associated with keeping the house, both now and in the future. So I try to make sure, sometimes with the assistance of a financial adviser, that my client is making a decision that really makes financial sense.


In the vast majority of cases, the person who will keep the house has to refinance, or otherwise assume a mortgage in order to remove the other spouse from liability for the mortgage and note as well as any home equity lines of the property. This means they have to be able to qualify for the entire amount of debt on the home by themselves. Plus, they have to pay all of the costs associated with the financing such as closing costs and points on the mortgage. Finally, they will likely have to pay the other spouse one half of any equity in the home. This costs can be substantial.


When paying the other spouse their equity in the home, sometimes there are other assets with which to offset the issue of paying off the other spouse. However, this is not a step to take lightly. Often, I see litigants give up all of their other liquid assets in order to keep the house. The result can be that there are no savings in case of an emergency, or in the event of loss of employment, something that is a real threat in the present economy. Other times, litigants will trade off their share of their spouses retirement to keep the house. This is a dangerous move, particularly if the litigant has traditionally been the non working spouse throughout the marriage and does not have enough years to accumulate retirement funds after the marriage is over. As we know from the current real estate market, we can’t count on the value of property to go up or even remain the same.

Continue Reading Is Keeping the House Really a Good Idea?

Do I have to continue living with him during the divorce?  Can I force her to leave?  Can I just move out?  If I move out, can I take the children with me?  These questions arise during the course of almost every divorce proceeding, and the answers are often not what people want to hear.

In New Jersey, the general answer to whether you can "make" the other party leave the home during the divorce is "no," except if that other party commits an act of domestic violence that results in a restraining order.  Other than that, the options are limited.  For instance, there exists what is known amongst New Jersey family lawyers as "Roberts" relief, allowing a court to Order the removal of a spouse without an event of domestic violence, so-named after an older case that many courts choose to no longer even follow in light of current domestic violence laws.  We were recently successful in obtaining one spouse’s removal from the marital residence pursuant to Roberts, but the circumstances there were so severe that such relief was warranted to prevent irreparable harm from happening to the children. 

With such limited options, often the only choice for parties is to continue living together during the divorce.  If the parties are able to get along and co-exist, recognizing that children living in the home will potentially be impacted long-term by what goes on in the home during the proceedings, problems are less likely to arise.  By contrast, however, if the matter is acrimonious, there can be few things worse than having to live together, especially if the matter drags on for months, if not years.  During one matter in which we were involved, it took almost three years before the parties ultimately settled.  During that time, the parties continued to reside in the marital home together with their young children.  By the time the matter was complete, one parent had completely alienated the children against the other parent, reunification therapy was necessary and the parties were completely unable to be near each other, let alone communicate in a rational manner.  While filing a motion to address such circumstances is more than appropriate, there is only so much Court intervention can do when it is not there to oversee the day-to-day occurrences in the marital home.

Continue Reading Living Together During A Divorce – The Right Decision Or The Only Choice?