In a decision dated, May 8, 2018, approved for publication, the New Jersey Appellate Division held that N.J.S.A. 46:3-17.4, precludes an unsecured creditor from forcing the partition of real property owned by a debtor and a non-debtor spouse as tenants by the entirety not used a martial residence. Raul Augustin Jimenez, et als. v. Raul Anibal Jimenez, (Superior Court, Middlesex County Docket No. L-0025-12 App. Div. May 8, 2018)
The statute cited provides, in substance, that neither spouse may “sever, alienate, or otherwise affect their interest in the tenancy by the entirety during the marriage or upon separation without the written consent of both spouses”.
The holding is important because it provides that the statute “supersedes and nullifies” existing case law that allowed such a creditor’s remedy in certain equitable circumstances. The decision protects and preserves the interest of husband and wife in property held by the entirety over the interest of a creditor of a single spouse.
The Court did note that an exception may exist in certain circumstances. As with any other legal matter, executing judgment creditors should consult with qualified, experienced counsel to develop and implement an effective post-judgment execution plan that is consistent with current law.