The case at hand comes to the court's attention by means of an order to show cause why the sale of marital real property during the predivorce litigation period should not be granted.
The bedrock principle that realty owned in tenancy by the entirety is not saleable by order of the court during the pendente lite period of a divorcing couple is buttressed by N.J.S.A. 3B:28-3 which reads as follows:
As to real property occupied jointly by a married person with his or her spouse acquired on or after May 28, 1980, as their principal matrimonial residence, every married person shall be entitled to joint possession thereof with his or her spouse during their marriage, which right of possession may not be released, extinguished or alienated without the consent of both spouses except by judgment of a court of competent jurisdiction. All other real property owned by either spouse which is not the principal matrimonial residence may be alienated without the consent of both spouses.
The leading case establishing this principle is Grange v. Grange, 160 N.J. Super. 153 (App.Div.1978). Together, Grange and the statute present a formidable barrier to granting relief in the instant case.
The parties were married in December, 1988, and lived together as husband and wife for approximately three months until March, 1989. During that time the couple lived together in the first floor apartment of a two-family dwelling located in Irvington, New Jersey, which is the property in question. It is alleged that the said property was purchased by plaintiff with her own funds on September 30, 1987, more than a year prior to the subsequent marriage. The deed conveying title was executed solely in plaintiff's name.
Following separation from the defendant, possession of the property was granted to the plaintiff on May 5, 1989 by order of a court resulting from a domestic violence complaint. With deteriorating financial circumstances, the plaintiff has been unable to keep up mortgage payments and other expenses to properly maintain the property. The plaintiff entered into a
contract for the sale of said property on June 8, 1989. Plaintiff has two young children from a previous marriage and claims that unless the property is sold, their financial and economic well-being will be irreparably harmed. The defendant, however, refused to join in the conveyance of the property.
On August 17, 1989, the defendant was ordered to show cause why an order should not be granted permitting the property to be sold pursuant to the contract of sale. The purchasers under the contract require such order to comply with the requirements of N.J.S.A. 3B:28-3. They threaten to avoid the contract if such order is not forthcoming. Although process was promptly served at the defendant's last known address, the papers were returned "forwarding expired." Subsequent attempts to ascertain the defendant's whereabouts have been unsuccessful. Consequently, the defendant failed to appear at the scheduled August 24, 1989 court date.
According to N.J.S.A. 2A:34-23, the court is vested with broad discretion to make such orders as deemed necessary for the maintenance of the parties and their children. The extent to which the court has the power to enter a pendente lite order for the sale of marital property is, however, unclear. The first paragraph of the statute states:
Pending any matrimonial action. . . or after judgment of divorce or maintenance . . . the court may make such order as to the alimony or maintenance of the parties, and also as to the care, custody, education and maintenance of the children, or any of them, as the circumstances of the parties and the ...