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Devane v. Devane

Decided: September 29, 1992.

ROSEANNE DEVANE, PLAINTIFF,
v.
DONALD C. DEVANE, DEFENDANT



Gannon, J.s.c.

Gannon

OPINION

This matter arises on defendant husband's pre-trial motion for a determination as to whether present and future annual installment payments of New Jersey State lottery winnings payable to the plaintiff wife are an asset of the marriage and subject to equitable distribution under N.J.S.A. 2A:34-23.

The parties were married on October 25, 1974 and throughout the marriage they commingled their respective earnings and assets. The parties routinely deposited the majority of their marital earnings into a joint checking account with the remaining balance being kept in a cash drawer at home available to each of them for miscellaneous personal and household expenses, including the purchase of lottery tickets.

In October, 1987 the plaintiff purchased with these funds a winning New Jersey lottery ticket worth $3,600,000 payable in

annual installments of $182,500 which she has continued to deposit in a separate account in her name alone. On the day following the plaintiff's winning the lottery, the defendant quit his job as an ironworker and has not worked a day since. The plaintiff has continued her employment as a police dispatcher.

The complaint for divorce in this action was filed on October, 18, 1990.

The defendant argues that this court should make a pre-trial determination as to asset eligibility of the lottery winnings and allocate the percentage attributable to each spouse for equitable distribution purposes.

The plaintiff wife argues that N.J.S.A. 2A:34-23.1 requires that a determination as to whether an asset qualifies as a marital asset subject to equitable distribution should not be made by the court prior to trial.

N.J.S.A. 2A:34-23 defines marital property for the purposes of equitable distribution as:

[P]roperty, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage. However, all such property, real, personal or otherwise, legally or beneficially acquired during the marriage by either party by way of gift, devise or intestate succession, shall not be subject to equitable distribution except that interspousal gifts shall be subject to equitable distribution . . .

As a matter of statutory construction, the clear and unambiguous language of N.J.S.A. 2A:34-23 mandates a determination that the lottery winnings in the instant case are a marital asset subject to equitable distribution since they were acquired by a party during the marriage and this ...


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