Failure to Make Mortgage Payments Decreases Equitable Distribution

Equitable distribution is how the parties' assets are divided in a divorce. Often one of the parties' largest assets is their marital residence. Frequently, a payor spouse or partner will be left with the alternative of paying the mortgage on the marital residence where the other party now resides or paying for their own residence when there are insufficient funds for both. When a party is ordered by the Court in a Pendente Lite Order, Final Judgment of divorce after a trial or agrees under the terms of a property settlement agreement to pay the mortgage on the marital residence and fails to do so, that party's share of the proceeds from the eventual sale of the marital home may be reduced equitably to permit the other spouse or partner to receive what they would have received had the payments been made. In the recent case of Debra Freeman v. William Freeman, Sr., the defendant was to buy the plaintiff's share of the residence or the residence was to be sold. William failed to buy out the plaintiff and also failed to make the mortgage payments due. Although Debra did not make an appropriate accounting of proceeds from the eventual sale of the residence and the court determined she was remiss for same. Although Debra's accounting indicated she walked out of the closing with approximately $12,000, the trial judge determined the parties should have received a combined $42, 422.34 in proceeds and ordered the plaintiff to pay William $21,211.17, representing one-half of the proceeds they should have received from the sale. Debra appealed and the NJ Appellate Court referred to the decision in F.G. v. MacDonell, 150 N.J. 550, 564 (1997) to support the finding that Debra, as the party responsible for the sale of the residence, was under a "duty to exercise reasonable skill and care" in the transaction. As a result of her breach of duty, William was entitled to an award remedying the situation as it pertained to him. However, the New Jersey Appellate Division also held that the Superior Court Judge should have considered the impact of the defendant's failure to make the mortgage payments as required. The Appellate Division remanded the matter to the NJ Superior Court to allow the trial judge to factor the defendant's failure to pay the mortgage into the award to him of $21,211.17 and reduce the award equitably. If you are considering or facing a divorce, it is imperative that you have an experienced family law attorney review your matter in order to ensure you are protected from unforeseen pitfalls which may result in the event of a change in the economy, a bitter former spouse or partner or other circumstances. For more information about divorce, dissolution, child support, alimony, equitable distribution, civil union or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Palimony Claims Under NJ Laws

Palimony is not determined by when the contract is made but rather when the claim is made. If you think you or someone you love is cared for under a palimony agreement, you should be aware of changes that have taken place in the law and how they affect any agreement you may have. In 2010, the law regarding palimony agreements changed to require a written agreement entered into with the assistance of counsel. Since that time, many individuals have attempted to enforce palimony agreements which came into existence prior to the effective date of the new requirements. In Maeker v. Ross, the NJ Appellate Division held that the palimony claim does not arise until the breach of the agreement or death of the promissor, it is the date on which the claim to enforce the agreement is filed which controls the validity of the agreement. In Maeker v. Ross, Maeker did not work during the parties 13 year relationship. Ross supported her, paid for her son's college education, kept her in a luxurious lifestyle by typical standards and allegedly promised her lifetime support. Maeker had power of attorney over Ross' affairs and both executrix and primary beneficiary under his will. Due to the timing of the parties' breakup, on or about July 2011, the Somerset County Superior Court Judge Thomas Miller decided the Legislature did not express a clear intent to terminate actions which arose in close proximity to the law's effective date. Miller reasoned that inequity would arise by the release of someone making a promise 30 years ago by a statutory change today. The Appellate Division disagreed with Miller, holding a palimony agreement to be a contract like any other and subject to interpretation on the same basis. The Appellate Division found Ross and Maeker had an 18 month period from the enactment of the law to the filing of the complaint to enter into an agreement enforceable under the new statute. Although Ross and Maeker did originally have the intent to enter into such an agreement based on their actions and lifestyle, at the time the requirements changed for a valid palimony agreement changed, the parties' relationship had clearly deteriorated to the point it is probable Ross would not have entered into an agreement under the terms of the current law. If you think you or someone you love is cared for under a palimony agreement or entering into a palimony agreement, you should consult experienced legal counsel to insure your rights are protected. For more information regarding palimony, alimony, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.