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  • 1.  Case - presumption that parties should be economically separate post-divorce

    Posted 04-05-2017 02:12 PM
    Parties were divorced in 2011. MSA (which I didn't draft!) says Wife shall refinance the mortgage but doesn't say when. A separately numbered paragraph says when she'll pay him his share (after the youngest child graduates - he was generous, wanted to keep the kids in the house and was willing to defer receipt). Client obviously can't buy a new residence with a mortgage on his credit - Wife's attorney is saying that provisions should be read together and Wife doesn't have to refinance until the youngest child is out of school.

    I know there's a case (I heard Judge Fitzpatrick in Mercer cite it on the record once when counsel had no provision for refinancing a joint mortgage in a MSA they were trying to put through) that says parties shouldn't retain financial links like this after they're divorce.

    Anyone know the case?

    Thanks,

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  • 2.  RE: Case - presumption that parties should be economically separate post-divorce

    Posted 04-05-2017 02:19 PM
    I think that there was a relatively recent Judge Jones Opinion that touched on this. 

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  • 3.  RE: Case - presumption that parties should be economically separate post-divorce

    Posted 04-06-2017 03:02 PM
    Got it - thanks. For those who asked off-list, here's a copy:  http://www.dpdlaw.com/LH-v-DH.pdf

    It was also pointed out off-list that Moore v. Moore and Innes v. Innes, in which the NJ Supreme Court indicated that the present value offset approach is preferred over the deferred distribution methodology, because the court should always strive to cut the financial ties between the parties. There is also another case, which coincidentally is also Moore v. Moore (but a different one), where the App. Div. said that spouses have a pre-existing duty that prohibits one from intentionally delaying their former spouse?s receipt of their share of equitable distribution.  Moore v. Moore, supra., 376 N.J. Super. at 251 .

    Thanks again, all.

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  • 4.  RE: Case - presumption that parties should be economically separate post-divorce

    Posted 04-06-2017 04:15 PM
    However, spouses often agree that they would delay the sale of the house so that children can finish school or for other reasons  and there would be nothing that would prohibit people from entering into an agreement that would have the sale of the house deferred to a later date? Would those agreements not be enforceable?
     
    Gerri Duswalt
     
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  • 5.  RE: Case - presumption that parties should be economically separate post-divorce

    Posted 04-06-2017 04:26 PM

    equitable distribution statute says you can delay sale of houe.

     

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  • 6.  RE: Case - presumption that parties should be economically separate post-divorce

    Posted 04-06-2017 04:28 PM

    You can, of course, delay the sale of the house.  The issue is when the mortgage has to be refinanced.  That was not specified in the MSA.

     

    Nancy D. Gold, Esquire

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  • 7.  RE: Case - presumption that parties should be economically separate post-divorce

    Posted 04-06-2017 07:01 PM
    That's a Bingo, Nancy.

    I think it's 100% clear and exactly what Nancy said - dad wanted to be a nice guy and ensure the kids could live in the house until emancipation, but he expected mom to re-fi. There's even a footnote saying "Parties to discuss issue if refinance does not occur within 8 months..." (the single page at issue is here - www.dpdlaw.com/RefiPage.pdf ). I think it's nonsense to try to infer an intention that he'd stay on the mortgage that long. I don't even think you need to go to the case law, but glad I've got it.  Thanks, all.


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  • 8.  RE: Case - presumption that parties should be economically separate post-divorce

    Posted 04-06-2017 07:02 PM

    I realized right after I hit "send" that I used the wrong signature line - political one. I don't know if it's in the terms of use or not, but I know we "don't go there" on this list. Apologies.


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    David Perry Davis, Esq.
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       www.FamilyLawNJ.pro
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    112 West Franklin Avenue
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    Voice: 609-737-2222
    Fax:    609-737-3222

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