Laura Randazzo v. Joseph J. Randazzo, Jr., 184 N.J. 101 (2005) (A-15-04; WALLACE, J., Decided June 28, 2005):

N.J.S.A. 2A:34-23 provides, in part, that

[p]ending any matrimonial action . . . the court may make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education and maintenance of the children, . . . as the circumstances of the parties and the nature of the case shall render fit, reasonable, and just, and require reasonable security for the due observance of such orders, including, but not limited to, the creation of trusts or other security devices, to assure payment of reasonably foreseeable medical and educational expenses.

The equitable distribution portion of that statute authorizes the court “where a judgment of divorce . . . is entered [to] make such award or awards to the parties . . . to effectuate an equitable distribution of the [marital] property, both real and personal . . . .” N.J.S.A. 2A:34-23(h).

Rule 5:3-5(c) provides, in part, that “[t]he court may also, on good cause shown, direct the parties to sell, mortgage, or otherwise encumber or pledge marital assets to the extent the court deems necessary to permit both parties to fund the litigation.” See Pressler, Current N.J. Court Rules, comment 4 on R. 5:3-5 (2005). Thus, our Court Rules authorize the trial court to order the sale of marital assets prior to the final judgment to help defray the cost of the litigation.

The Family Part is a court of equity. The Supreme Court read the statutory requirement that directs equitable distribution at the time of the divorce judgment to be limited by the portion of N.J.S.A. 2A:34-23 that authorizes the court in its discretion to “make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education and maintenance of the children.” The Court concludes that, consistent with N.J.S.A. 2A:34-23 and Rule 5:3-5, the trial court may exercise its discretion to order the sale of marital assets and the utilization of the proceeds in a manner as “the case shall render fit, reasonable, and just.”

The Court acknowledged that in many cases the proceeds from the sale of marital assets should be placed in escrow pending final distribution. But in other cases, the proceeds may properly be used to pay marital obligations.

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