I was served two days ago with divorce papers. I am out of money thus I am selling a pre-marital condo property to use the proceeds to pay for ongoing family living expenses. Does my spouses lawyer have a right to make my real estate lawyer put the proceeds from the sale into an escrow fund. Spouse is telling her lawyer it is a marital asset. I alone am on the deed, I purchased it with my ex-wife in 1984 and was remarried to my current wife in 1996. Spouses lawyer has a court date scheduled in the future for a civil action order that the money should be put into his escrow account and not disbursed to me. Previously spouses lawyer tried to accomplish this in a civil action through the courts (without my knowledge and before I was served the divorce papers) and was denied. What should my real estate lawyer say to the spouses lawyer. There is no court or judge order demanding I do this.
3 Answers from Attorneys
The condo might have some porition of the property subject to equitbable distribtuion.
The New Jersey Statute is 2a:34-23.1 Equitable Distribution Criteria. It states:
In making an equitable distribution of property, the court shall consider, but not be limited to, the following factors:
1.The duration of the marriage;
2.The age and physical and emotional health of the parties;
3.The income or property brought to the marriage by each party;
4.The standard of living established during the marriage;
5.Any written agreement made by the parties before or during the marriage concerning an arrangement of property distribution;
6.The economic circumstances of each party at the time the division of property becomes effective;
7.The income and earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage;
8.The contribution by each party to the education, training or earning power of the other;
9.The contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property, as well as the contribution of a party as a homemaker;
The tax consequences of the proposed distribution to each party;
The present value of the property;
10.The need of a parent who has physical custody of a child to own or occupy the marital residence and to use or own the household effects;
The debts and liabilities of the parties;
11.The need for creation, now or in the future, of a trust fund to secure reasonably foreseeable medical or educational costs for a spouse or children;
12.The extent to which a party deferred achieving their career goals; and
13.Any other factors which the court may deem relevant.
In every case, the court shall make specific findings of fact on the evidence relevant to all issues pertaining to asset eligibility or ineligibility, asset valuation, and equitable distribution, including specifically, but not limited to, the factors set forth in this section.
It shall be a rebuttable presumption that each party made a substantial financial or non-financial contribution to the acquisition of income and property while the party was married. L.1988, c.153, s.4; amended 1997, c.407.
However, the "portion" of the condo subject to equitable distribtuion or whether the property is exempt will have to be determined during the discovery process and maybe a trial. Also, there are other issues that might have an impact on the equitable distribtuion of this asset as well as other assets.
I would suggest you retain counsel to assist you immediately before the court hears the motion.
I would be happy to follow up with you. Please email me directly or call my office if you would like to schedule an appointment either in person or by telephone. My contact information is listed in the links below.
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You must retain counsel immediately to determine what if any portion of this property which even though it is is pre-marital might still be subject to equitable distribution.
I would think that there is some minimal portion of the real estate which is yours, even under the argument of your wife's attorneyl I would think that you could successfully argue that the Court should release at least half of the net proceeds to you, due to your urgent need and due to the unlikeliness of your wife being entitled to the all the equity in the property.
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