From client who is litigating the issue (pro se) in the Appellate Division (not badly written, especially for a pro se litigant...):
The Court abused its discretion and did not apply pertinent case law in the equity line debt allocation. "
[F]or purposes of determining what property will be eligible for distribution[,] the period of acquisition should be deemed to terminate the day the complaint is filed."
Painter v. Painter, 65
N.J. 196, 218 (1974). Where there has been fluctuation in the value of a marital asset between the date the divorce complaint was filed and the date of distribution, the driving force behind that fluctuation must be determined so that proper distribution of the asset may be accomplished,
Scavone v. Scavone, 243
N.J. Super. 134, 136-37 (App.Div. 1990). Where the value of a particular marital asset has increased due to the diligence and industry of the party in possession of that asset, independent of market forces, the increase will normally accrue to that party alone, Id. at 137. Where, however, the enhanced value is attributable to market factors or inflation, the increase will generally be divided between both parties. Ibid.
The equity in the marital home is both a passive and active asset. It is passive in that the value of the home can fluctuate due to market forces which will increase or decrease both parties equity in the home independent of their efforts. It is active in that one or both parties payments to or withdrawals from the first and/or second mortgages directly impacts the equity in the marital home.
The central bright-line rule is that the marriage is deemed ended upon the filing of a complaint that culminates in a divorce,
Portner v. Portner, 93
N.J. 215, 219 (1983). The Trial Court did not make findings on the date that the Marital Estate was capped for Equitable Distribution purposes. Thus as of the date of complaint the marital home and the equity in it becomes subject to Equitable Distribution the valuation of which is subject to the terms in
Scavone. Thus mortgage payments made by Richard that increased the equity in the marital home should accrue solely to him and the withdrawals he made should be solely his responsibility. Similarly the equity line withdrawals Plaintiff made should be solely her responsibility.
<x-sigsep>
</x-sigsep> David Perry Davis, Esq.
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Original Message------
There is a reported decision from the 80s but I can't recall the name currently.
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