In divorce proceedings, a Court is authorized by statute to make an equitable distribution of marital assets.  For the most part, that means assets acquired in joint names, or in the name of either spouse, during the marriage.

Courts also have the power to trace assets which a spouse wrongfully diverted, so that equitable distribution can be fairly and equitably accomplished.

In a recent divorce case, one of the spouses claimed the other wrongfully had diverted assets, but died before the claim could be tried.  The spouse’s Estate moved to intervene to continue the claim for wrongful diversion against the surviving spouse.  The trial court denied the motion, reasoning that the claim did not survive the death of one of the spouses.

YOU BE THE JUDGE:  If one spouse dies before the trial court can determine a claim of wrongful diversion of marital assets, can the Estate continue the claim?

In Kay v. Kay, the Supreme Court ruled that the claim survived the spouse’s death and the Estate could pursue the claim.  This would promote equity and fair dealing because the rightful heirs of the deceased spouse would receive their just entitlement and the surviving spouse would not be unjustly enriched.  The Court also noted that to rule otherwise would leave an innocent spouse with no remedy.

The decision points out that a courtroom can bring justice and may be the only way to protect your rights.  Our Law Firm knows courtrooms; we have harnessed the power of the law in courtrooms to bring justice for our clients for decades in Passaic, Jersey City, Newark, Clifton, Morristown, Montclair, Roseland, Hoboken, Saddle River and throughout Bergen County, Morris County, Passaic County, Essex County and Hudson County.  Please contact us to discuss how we can help you protect your rights in a new lawsuit or provide a Asecond opinion@ about your pending lawsuit.  There is no obligation for the initial consultation. Copyright Samuel D. Bornstein, P.A. 2008-2010.

About the Author:
Author, Samuel D. Bornstein, is associated with the law firm ( and has 40 years of experience in representing individuals and a wide variety of businesses from Fortune 100 companies that need specialized assistance to smaller companies that look to the firm as their “in house” lawyer for general day-to-day advice. The firm is experienced with transactional work and litigation, emphasizing corporate and partnership operations, employment and workplace law, professional negligence, malpractice matters, immigration, civil rights and real state matters and insurance defense.
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