On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2210-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and LeWinn.
Plaintiff Nancy Isaacson and defendant George R. Hirsch were married in a Jewish religious ceremony on September 9, 1998. There were no children born of this marriage. After about nine years and seven months of marriage, plaintiff filed a complaint for divorce. Following a bench trial on the parties' respective claims under their pre-marital agreement, a judgment of divorce was entered in December 2009. The judge's determination of the amount plaintiff owed defendant for his interest in the marital residence was finalized in orders entered on March 12 and July 1, 2010.
Plaintiff appeals from those orders memorializing the judge's interpretation of the parties' pre-marital agreement, fixing the amount owed defendant and denying her request for counsel fees. Defendant filed but subsequently withdrew a notice of cross-appeal. Because the judge properly interpreted and applied the parties' pre-marital agreement and her factual findings relevant to the division of jointly-held property and counsel fees are supported by the record, we affirm those determinations. We remand for the limited purpose of having the judge address a request for counsel fees that was reserved for decision in an order of June 10, 2009, but never addressed by the judge.
The facts pertinent to the division of property are essentially undisputed. This marriage was the second for both parties. When they decided to marry, plaintiff had one child and defendant had two; both parties were practicing law as partners in separate law firms; both parties owned real estate, plaintiff one home and defendant one home in New Jersey and one in Maine; and plaintiff's residence was subject to a first and second mortgage.
The parties executed a pre-marital agreement. Pertinent here, the preamble to the pre-marital agreement states:
[T]he parties desire to fix, limit, and determine by this agreement, insofar as is permissible by law, the interests, rights, and claims which will accrue to each of them in the property and estate of the other by reason of their marriage to each other, and to accept the provisions of this agreement in lieu, and in full discharge, settlement, and satisfaction, of any and all interests, rights, and claims which otherwise each might or could have, under the law, in and to the property and estate of the other, both before and after the other's death[.]
Article 1 is entitled "pre-marital property." Section 1.1 defines "separate property" broadly to include all property owned by that party (to the exclusion of the other) of every kind and nature whatsoever, owned at the time of the contemplated marriage . . . , including, but not limited to: any property into which same may be converted; any income from any such property; and any increments, accretions, or increases in value at any time of such property, whether due to market conditions or the services, skills, contributions or efforts of either party.
Section 1.1. goes on to include as separate property not only assets listed by the parties on schedules appended to the agreement but also any interest either party "may have or acquire" in any "IRA, 401(k) or other retirement benefit, right or plan."
Article 2 addresses property acquired in separate name and jointly during the marriage. Pursuant to section 2.2A, "[a]ny property acquired during the marriage by either party and taken in separate name shall be deemed to be the acquiring party's separately held property, free from any claim by the other party." Section 2.2, like section 1.1, preserves as separate property "any interest either party may have or acquire in any IRA, 401(k) or other retirement benefit, right or plan." In contrast, Section 2.2B, which addresses property acquired in "joint name," provides: "[a]ny property acquired during the marriage by either party and taken in joint name shall be deemed to be the parties' jointly held property, regardless of the precise type of joint ownership acquired."
Section 1.2 states the parties' agreement regarding their pre-marital homes and marital residence. They agreed to sell their separate homes in New Jersey and purchase one residence to be owned by them jointly. With respect to the purchase of a marital residence, section 1.2 provides for them to contribute "in such amounts as they shall mutually agree, except that neither party shall require the other to contribute more than $20,000." They further agreed that "[c]arrying charges of the new home and the parties' living expenses shall be shared by the parties in such proportions as shall be appropriate according to their circumstances." Defendant agreed to "increase his share . . . appropriately" if he were to sell his house in Maine.
Article 3 addresses debts and the parties' respective individual debt and support obligations. It requires each to pay his ...