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Information from N.J. Courts On Line

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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Are you a victim of FORECLOSURE? originally appeared on NJ Family Issues on October 8, 2009.

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“Property ‘clearly qualifies for distribution’ when it is ‘attributable to the expenditure of effort by either spouse’ during marriage.” Pascale v. Pascale, 140 N.J. 583, 609 (1995) (quoting Painter v. Painter, 65 N.J. 196, 214 (1974)). That rule applies even if the property was purchased by one spouse prior to marriage but was paid off by both spouses during the marriage. Griffith v. Griffith, 185 N.J. Super. 382, 385 (Ch. Div. 1982) (explaining that the wife was entitled to a credit for a house purchased by the husband prior to marriage because during the marriage she contributed to paying off the mortgage).

[P]otential tax consequences arising out of the future sale of marital assets is a factor that should be considered in the overall equitable distribution scheme . . . [but] there must be an evidentiary basis for the hypothetical tax consequence “presumably fixed by competent expert testimony” before it is considered as a factor in determining the distributive share of each party.
[Scavone v. Scavone, 243 N.J. Super. 134, 139 (App. Div. 1990) (quoting Orgler v. Orgler, 237 N.J. Super. 342, 356 (App. Div. 1989)).]

However, where defendant purchased commercial real estate before the marriage, plaintiff would not be entitled to share in an increase value that was brought about exclusively through market forces. See Mol v. Mol, 147 N.J. Super. 5, 9 (App. Div. 1977) (explaining that the “plaintiff is not entitled to share in that portion of enhancement in value of the house [that the defendant purchased prior to marriage] which was due solely to inflation or other economic factors and to which she did not contribute in any way”).

NOTE: My legal services include family law, litigation, arbitration, mediation, property settlement agreements, premarital and prenuptial agreements, midmarriage and marital agreements.

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Pre-marital real estate may (or may not) be subject to equitable distribution originally appeared on NJ Family Issues on August 19, 2009.

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A fact-finder’s need for expert witnesses is well-defined. Expert testimony is required “where the fact[-]finder is not expected to have sufficient knowledge or experience and would have to speculate without the aid of expert testimony.” Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001) (citing Kelly v. Berlin, 300 N.J. Super. 256, 268 (App. Div. 1977)). Expert testimony is generally required to determine the fair market value of real property, Jacobitti v. Jacobitti, 263 N.J. Super. 608, 613 (App. Div. 1993), aff’d, 135 N.J. 571 (1994), but the “fact[-]finder is not bound to accept the testimony of an expert witness,” Torres, supra, 342 N.J. Super. at 431 (citing Johnson v. American Homestead Mortgage Corp., 306 N.J. Super. 429, 438 (App. Div. 1997)), and “may accept some of the expert’s testimony and reject the rest.” Id. at 430-31 (citing Todd v. Sheridan, 268 N.J. Super. 357, 401 (App. Div. 1993)).

Where the judge has questioned or rejected the testimony of the expert, the judge, among other things, may appoint an independent expert. Id. at 436 (quoting Lavene v. Lavene, 148 N.J. Super. 267, 278 (App. Div.), certif. denied, 75 N.J. 28 (1977)). See also Alk Assocs., Inc. v. Mutlimodal Applied Systems, Inc., 276 N.J. Super. 310, 318 (App. Div. 1994); Borodinsky v. Borodinsky, 162 N.J. Super. 437, 444 (App. Div. 1978); N.J.R.E. 614.

Ultimately, the fact-finder must weigh and evaluate the experts’ opinions, including their credibility, to fulfill the fact finder’s responsibility in reaching a reasoned, just and factually supported conclusion. Averaging cedes this unique responsibility to a simple mathematical formula and is an unacceptable methodology for fulfilling one’s role as a fact-finder.

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In ascertaining the value of real estate, sales prices of comparable properties are critical to market analysis. See Inmar Assocs. Inc. v. Edison Twp., 2 N.J. Tax 59, 66 (Tax 1980). Variations between comparable sales and the subject property are anticipated and accommodated by making adjustments. Glenpointe Assocs. v. Teaneck Twp., 241 N.J. Super. 37, 48-49 (App. Div.), certif. denied, 122 N.J. 391 (1990). The differences are “dealt with by adjustments which recognize and explain the differences and then by relating the two properties to each other in a meaningful way so that an estimate of value can be determined.” Id. at 49 (citing U.S. Life Realty Corp. v. Jackson Twp., 9 N.J. Tax 66, 72 (Tax 1987)).

“Adjustments that are too large [however,] suggest a lack of comparability between the concerned sales and the subject property and present a misleading indication of the subject property’s value.” 125 Monitor Street, LLC v. Jersey City, 21 N.J. Tax 232, 243 (Tax 2004), aff’d, 23 N.J. Tax 9 (App. Div. 2005). For example, in Pepperidge Tree Realty Corp. v. Kinnelon Borough, 21 N.J. Tax 57, 71 (Tax 2003), an appraiser presented four comparable sales, three of which had gross adjustments of 30% plus 10% for time, 30% plus 10% for time and 45% plus 11% for time. The Tax Court held that these high adjustment percentages raised doubts as to the true comparability of the underlying sales. Ibid. See also 125 Monitor Street, supra, 21 N.J. Tax at 242-44 (holding the same for adjustments of 20% plus 3% for time, 45% plus 10% for time, 35% plus 12% for time and 40% with no time adjustment).

Adjustments to sales of a large magnitude “vitiate comparability.” Global Terminal & Container Servs. v. City of Jersey City, 15 N.J. Tax 698, 704 (Tax 1996).

Expert testimony is generally required to determine the fair market value of real property originally appeared on NJ Family Issues on May 27, 2009.

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A tenancy in common is subject to partition proceedings whereas a tenancy by the entirety is not. Lawrence v. Lawrence, 79 N.J. Super. 25, 32, 190 A.2d 206 (App. Div. 1963).

A judgment of divorce from bed and board (limited divorce) is not a true divorce since it does not dissolve the bonds of matrimony but merely decrees a judicial separation. Rudin v. Rudin, 104 N.J. Eq. 524, 146 A. 351 (Ch. 1929).

A tenancy by the entirety is a creature of the common law anomalous in nature, based on the legal concept that husband and wife are one. Estates by the entirety have no moities. Each spouse holds the entirety and each receives Per tout et non per my.

Since an absolute divorce terminates the marital relationship, it converts an estate by the entirety into a tenancy in common. Sbarbaro v. Sbarbaro, 88 N.J. Eq. 101, 102 A. 256 (Ch. 1917). However, by common law mere separation of husband and wife, whether voluntary or judicial, did not affect an estate by the entirety nor change its essential characteristics. Dorf v. Tuscarora Pipe Line Co., Ltd., 48 N.J. Super. 26, 32, 136 A.2d 778 (App. Div. 1957).

N.J.S.A. 2A:34-6 was enacted to “clarify” the property rights of parties to a judgment of divorce from bed and board. The statute provides that while such a judgment remains in force all property rights of the parties shall be as though a judgment for absolute divorce had been entered.

Our Supreme Court, in Lavino v. Lavino, 23 N.J. 635, 640, 130 A.2d 369, 371 (1957), said that the statute in question does not operate ‘to dislodge any inchoate right (of dower) previously existing and so it has no ‘retroactive effect’; the right is simply prevented from arising upon property acquired after the enactment.’

The statute did not affect tenancies by the entirety created prior to the enactment of the statute [1949].

[Special thank you to R. Scott King, Esq. for bringing this case to my attention.]

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

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Since an absolute divorce terminates the marital relationship, it converts an estate by the entirety into a tenancy in common originally appeared on NJ Family Issues on December 31, 1967.