Parties are from China and have lived in New Jersey for about two years. Client has significant property holdings in China (several residential apartments in Bejing). I understand that New Jersey doesn't have jurisdiction over property located in another country. Obviously, NJ has jurisdiction over support, custody issues, alimony, and distribution of property that's here.
When confirming this point of law, which has come up before in reference to holdings in Israel, I reviewed an appellate order on a motion (below) from another case.
Here's what worries me. In this order, after confirming the general point of law, Judge Lihotz states "Here, the action in Israel was commenced prior to this matrimonial matter." This is concerning me. I don't see anything in the case law that implies that a subject matter jurisdiction defense as to foreign property is subject to waiver, but Judge Lihotz isn't usually one to toss in extra words.
Under Chinese law, the other party gets very little. Under NJ law, if NJ had jurisdiction, she would get a very significant amount. I don't want to file a complaint and have my client lose lot of money by my waiving this defense (and my malpractice carrier doesn't want me to do that, either).
Does anyone know if there is a waiver on this issue based on the filing of a complaint? Do I need to include language like "7. The parties acquired real and personal property during the marriage subject to distribution pursuant to N.J.S.A. 2A:34-23. Plaintiff does not seek distribution of any property located outside of the State of New Jersey and preserves any related challenges as to the subject matter of the State over any foreign property."
in the complaint? Would that be sufficient?
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David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
http://www.FamilyLawNJ.pro
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-000521-14T3
MOTION NO. M-000931-14
BEFORE PART B
JUDGE(S): MARIE E. LIHOTZ
ORDER
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THIS MATTER HAVING BEEN DULY PRESENTED TO THE COURT, IT IS,
ON THIS 10th day of December, 2014, HEREBY ORDERED AS FOLLOWS:
..... GRANTED
SUPPLEMENTAL: Leave to appeal is granted in part solely to
clarify the limited issue of the scope of the Family Part's
jurisdiction to address the transfer of real property located in
Jerusalem, Israel.
The challenge attacks what is characterized as the Family
Part's equitable distribution and transfer of foreign realty.
However, the order appears from this record to have been entered
FILED, Clerk of the Appellate Division, Dec 11 2014, A-000521-14, AMENDED
Page 2 of 2
following binding arbitration determinations. The motion record
appears incomplete in this regard, therefore we provide the
parameters of the Family Part's jurisdiction and remand the
matter.
First, the court may confirm a final award rendered in
arbitration. See N.J.S.A. 2A:23B-22. These parties chose to be
bound by the arbitration process, thus constricting the court's
role thereafter. Jurisdiction is limited to confirming a final
arbitration award, once issued, enforcement of the final award
as permitted by statute, or addressing the limited challenges
available to such an award. If the arbitration award is not
final, the matter must be returned to arbitration for
finalization.
Second, a New Jersey court may not exercise jurisdiction to
adjudicate disputes regarding or order the disposition of real
estate located outside the state's borders. New Jersey Courts
lack subject matter jurisdiction to affect realty located in
another country, as "the laws of the place where such property
is situate[] exclusively govern . . . the rights of the parties,
the mode of transfer, and the solemnities which shall accompany
them." Allaire v. Allaire, 37 N.J.L. 312, 321-22 (Sup. Ct.
1875), aff'd 39 N.J.L. 113 (E. & A. 1876). Here, the action in
Israel was commenced prior to this matrimonial matter. The
Israeli court has subject matter jurisdiction to consider any
challenges to the transfer of the realty, as governed by Israeli
law.
The matter is remanded to the Family Part to clarify its
determination. We do not retain jurisdiction.
FOR THE COURT:
MARIE E. LIHOTZ, P.J.A.D.
FM-15-001487-14 OCEAN
ORDER ON MOTION WHEN CROSS-FILED
BJD