Separation of Husband and Wife Before a Complaint is Filed

Often one of the first questions a matrimonial attorney gets asked by clients contemplating a divorce is, “how do I obtain a legal separation?”  The answer is that in the State of New Jersey there is no such thing as a “legal separation”.  If one wishes to separate from their spouse, they simply move out.  Unlike many other states, New Jersey does not have a law on legal separation.  

In this State, one does not have to ask for the court’s permission or obtain a formal decree of any sort in order to be able to move out of the marital home and “officially” separate from his or her spouse.  Of course this freedom to separate is not a license to abandon all financial and domestic responsibilities

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Forcing the Sale of the Marital Home

Frequently during a matrimonial litigation, there is one spouse who wants the marital home sold immediately (e.g., the husband who moved out of the home) and one spouse who wants to wait to sell the home (e.g., the wife with the children).  Can the husband force the sale of the home over the wife’s objection?  The answer, as you might expect, is: sometimes.  But those “sometimes” have more to do with the financial condition of the family than of the individual preference of the one party who wants to sell. 

Generally, it is true that a Court will not order a final distribution or sale of an asset until time of judgment.  But if it is clear to the Court that this house is “underwater” and that this family does not have the financial means to  maintain the house and pay the mortgage, a Court will often direct that the house be sold.   The thought process is that the parties’ assets should be preserved to the extent possible.  If foreclosure proceedings have already commenced, the likelihood of a Court-ordered sale become much higher than if there are no foreclosure proceedings.  In fact, in these economic times, the short-sale of a home may be a prudent business decision that may help salvage limited marital assets.

Selling and Dividing the Marital Home in Today’s Real Estate Market

What happens when the marital home is worth less than what is owed on it?

In the past, the equity in the marital home was often the parties’ most significant asset.  The equity in the marital home was used to offset value in other assets for purposes of asset division.  In the current real estate market, however, given the drastic reduction in property values and the frequent inability to sell at any “reasonable” price, the marital home (or any other real estate subject to equitable distribution) may instead become a liability, not an asset.  Instead of wanting to keep the asset, the parties may be fighting over who is responsible to financially maintain that property.

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