17 Dec Can a judge force a home sale as part of a divorce?

Q. I’m getting divorced. The judge ordered my house sold and it seems wrong. How do I stop this? There is a large marital estate and I have been raising a family here for nine years. I am on the deed of two houses and he also bought a third during our marriage. Everyone says I am not entitled to two of the three homes.
— Confused

A. We’re sorry to hear about your divorce.

There are a few issues you need to understand.

New Jersey is an “equitable distribution” state, which is not the same as “equal distribution,” said Thomas Roberto, a family law attorney with Adinolfi, Lieberman, Burick, Roberto & Molotsky in Haddonfield.

In the event of divorce, marital assets and debts are divided in an equitable, or fair manner between spouses, taking into consideration the facts of each particular case, he said.

“The first inquiry for purposes of equitable distribution is whether the asset or debt at issue is marital in nature,” roberto said. “If marital, each spouse would have an equitable interest in the asset and responsibility for the debt upon divorce.”

In order to be considered “marital” and then subject to equitable distribution, the asset in question generally must have been acquired during or in contemplation of the marriage, he said.

N.J.S.A. 2A:34-23(h) provides specifically for the “equitable distribution of… property, both real and personal, which was legally and beneficially acquired” by one or both spouses “during the marriage.”

Roberto said if real estate is acquired during the marriage, it is generally subject to equitable distribution at the time of divorce. This is the case regardless of whether the property is titled in the name of one or both spouses, he said.

If the real estate in question was not acquired during the marriage, whether the non-title holding spouse would have an interest in the property – and if so to what extent — would depend on the specifics of your case.

Roberto said some relevant factual considerations would include, but not be limited to: Did the parties reside in the property as husband and wife at any time during the marriage, and if so, for how long? Was the property purchased in contemplation of the marriage? Did the other spouse make financial contributions toward the acquisition and/or improvement of the property?

If the answer to all of these questions (and more) is a resounding “no,” then the simple answer may be that the other spouse has no legal claim toward the real estate, he said.

If the real estate is determined to be marital and subject to equitable distribution, it will generally be disposed of in one of two ways, Roberto said: Either one spouse retains the property — and, if appropriate, effectuates a buyout of the other spouse’s equitable interest — or the home is sold with any net proceeds or deficiency resulting from the sale to be split between the parties.

Roberto said the court does have the authority to order the sale of marital real estate, but whether or not that is an appropriate remedy depends on the specific facts of each case.

“Affordability and the benefit of retaining the home to children born of the marriage are common reasons cited by one or both spouses for desiring to retain marital real estate post-divorce,” he said.

He noted the timing of a judicial decision to force the sale of marital real estate is also a relevant consideration.

“Courts have more liberal authority to compel the sale of marital property after a trial, at the conclusion of a divorce or post-divorce proceeding, than they do mid-divorce,” he said. “On a pendente lite — Latin for `pending the litigation’ basis — there have to be some exigent circumstances justifying the court’s decision to force the sale of marital real estate, for example, in a case where not forcing the sale of the home mid-divorce may result in foreclosure or loss of the property.”

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This story was originally published on Dec. 17, 2021.

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