                             NOT FOR PUBLICATION WITHOUT THE
                            APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
  internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-3739-18T4

IN THE MATTER OF THE
ESTATE OF JAMES J.
GILLETTE,

     Deceased.
________________________

                Argued telephonically May 11, 2020 –
                Decided May 22, 2020

                Before Judges Geiger and Natali.

                On appeal from the Superior Court of New Jersey,
                Middlesex County, Chancery Division, Docket No. P-
                257014.

                Abraham Borenstein argued the cause for appellant
                Chae Sun Pak (Borenstein, McConnell & Calpin, PC,
                attorneys; Abraham Borenstein and Bradley M. Arlen,
                on the briefs).

                Joseph B. Fiorenzo argued the cause for respondents
                Lori Ann Gillette, individually and in her capacity as
                Executrix, Laura Koscinski and James J. Gillette, Jr.
                (Sills, Cummis & Gross, PC, attorneys; Joseph B.
                Fiorenzo, of counsel and on the brief; David Phillips
                and Kyle Vellutato, on the brief).

PER CURIAM
      Plaintiff Chae Sun Pak appeals from an October 29, 2018 Probate Part

order dismissing her complaint with prejudice and a March 20, 2019 order

denying her motion for reconsideration. We affirm.

                                        I.

      We glean the following facts from the motion record.        Prior to their

marriage in November 2013, plaintiff and James J. Gillette (decedent) executed

a prenuptial agreement (the Agreement) on August 29, 2013. Both parties were

represented by independent counsel during the negotiation and execution of the

Agreement.

      The Agreement notes the following. The marital residence was owned by

plaintiff and decedent as joint tenants with a right of survivorship and would

automatically pass to the surviving joint tenant upon the death of the other. In

addition, plaintiff and decedent each owned fifty percent of Pak Enterprises,

Inc., a New Jersey corporation formed to own and operate a commercial building

in Sayreville. Decedent agreed "to give and bequeath" his stock ownership

interest in the corporation to plaintiff, whether or not she survived him as his

spouse, unless she filed for divorce.

      Decedent jointly owned a cooperative apartment in Manhattan (NY co-

op) with Janet Pak, plaintiff's daughter.    Decedent agreed to transfer his

                                                                       A-3739-18T4
                                        2
ownership in the NY co-op to plaintiff upon execution of the Agreement. In

2003, decedent loaned $500,000 to plaintiff to assist her in the acquisition of a

dry-cleaning business in Brooklyn. Decedent agreed to forgive, release, and

discharge the indebtedness and any interest due thereon upon execution of the

Agreement.

      Plaintiff was the beneficiary of the James J. Gillette Revocable Trust,

whose sole asset was a $500,000 death benefit under decedent's retirement plan.

Plaintiff agreed to release all rights to any interest in decedent's retirement plan

and the James J. Gillette Revocable Trust.

      The Agreement also notes plaintiff and decedent each owned separate

property. In Article V of the Agreement, plaintiff waived the right to any

interest she may acquire in decedent's separate property, including any right to

take an elective share in decedent's estate:

                    [Plaintiff] hereby waives and releases any and all
             rights and claims of every kind, nature and description
             that [plaintiff] may acquire as [decedent's] surviving
             spouse in [decedent's] Separate Property (as defined in
             the Recitals), including (but not by way of limitation)
             any and all rights in intestacy, and any and all rights of
             election to take against [decedent's] Last Will and
             Testament, under the laws of the State of New Jersey
             and any future amendments thereto.

                  Furthermore, [plaintiff] understands it is of
             utmost importance to [decedent] that this waiver

                                                                           A-3739-18T4
                                         3
            specifically apply to interests in GILLETTE
            ENTERPRISES,         INC.,    CENTRAL         JERSEY
            CONTRACTORS, INC. and GILLETTE TOWERS,
            INC. which are now owned by [decedent], his said three
            (3) children, his grandchildren or any trusts for their
            benefit.

            [(Emphasis added).]

Similarly, in Article IV, decedent waived any interest in plaintiff's separate

property that he may acquire as a surviving spouse.

      In Article VI, the parties mutually waived the right to equitable

distribution in all separate property of the other party, including any property

owned prior to the marriage. The waiver included any income derived therefrom

and any capital appreciation accrued during the marriage. Finally, the parties

mutually waived any past, present, or future claim for spousal support, alimony,

and any claim for counsel fees upon termination of the marriage.

      Attached as Exhibits "A" and "B" to the Agreement are "financial

statements" identifying the assets and liabilities of decedent and plaintiff,

respectively, as of December 31, 2012. Decedent's financial statement lists the

value of fixed return investments (checking account, money market fund, life

insurance cash value, and loans receivable), a variable-return investment

(retirement plan), and personal assets (market value of Gillette Enterprises, Inc.;

book value of Central Jersey Contractors, Inc.; Pak Industries/Best Cleaners

                                                                          A-3739-18T4
                                        4
promissory note; Sayreville residence; Kissimmee, Florida residential unit

(Florida Property); NY co-op; other personal assets; and estimated cash value

of 50% interest in life insurance). It also listed the mortgage on the NY co-op

as a liability. In addition, Article X indicates the parties—and their respective

counsel—reviewed the financial statements prior to signing the agreement on

August 26, 2013.

        Decedent passed away on April 21, 2017. His will was admitted to

probate and letters testamentary issued to his daughter, Lori Ann Gillette, on

May 5, 2017. On May 11, 2017, a notice of probate was served upon all

interested parties under the will, including plaintiff.

        On September 18, 2017, plaintiff's counsel sent written notice to counsel

for the Executrix stating that "[plaintiff] intends to enforce her elective share of

the estate as [d]ecedent's surviving spouse." Plaintiff took no further action until

July 12, 2018, when she filed a seven-count complaint that named Lori Ann

Gillette, individually and as Executrix; Laura Koscinski, decedent's daughter;

and James J. Gillette, Jr., decedent's son, as defendants and heirs-at-law of

decedent's estate.

        The complaint asserted claims for: dissolution of the Agreement (count

one);     an   elective   share   against    decedent's    estate   (count      two);


                                                                             A-3739-18T4
                                         5
equitable/promissory estoppel against decedent's daughter-in-law, Chrissy

Gillette (count three); equitable distribution of the sale proceeds of the Florida

Property (count four); appointing plaintiff as ancillary executor of decedent's

estate in the New York to probate decedent's joint ownership interest in the NYC

co-op (count five); unjust enrichment (counts six and seven); and fraud (count

seven). Plaintiff does not challenge the dismissal of counts three and five.

      As to counts one and two, plaintiff alleged the Agreement is a product of

fraud and is unconscionable because: "(1) [she] was not provided full and fair

disclosure of the earnings, property and financial dealings and obligations of

[d]ecedent; and (2) [she] did not have, or reasonably could not have had, an

adequate knowledge of the property of financial obligations of [decedent]."

      As to count four, plaintiff claimed she was entitled to the sale proceeds of

the Florida property because she and "decedent intended for [it] to be a martial

vacation home" and it "was solely in [d]ecedent's name for convenience only."

      As to counts six and seven, plaintiff alleged "approximately $350,000 was

transferred from Pak Enterprises, Inc. to Central Jersey Contracting" and spent

on a new development known as Gillette Towers, LLC. It further alleged

decedent and the Executrix engaged in improper transfer of funds and hiding

investments, checks, and cash.


                                                                         A-3739-18T4
                                        6
      The Middlesex County Surrogate issued an Order to Show Cause (OTSC)

requiring defendants to show cause why judgment should not be entered to

plaintiff on her claims and to:     (a) order the executor to provide a formal

accounting; (b) impose a constructive trust to prevent waste or improper transfer

of assets; (c) preliminarily enjoin further estate transactions; (d) require Chrissy

Gillette to reimburse the cost of repairing the damage to the Sayreville

residence; and (e) grant other specified relief.

      Defendants opposed the OTSC and cross-moved to dismiss the complaint

or, in the alternative, for summary judgment. Defendants contended plaintiff

failed to state a claim upon which relief can be granted, waived her right to an

elective share, and was time-barred from seeking an elective share.

      Plaintiff did not present any witnesses at the OTSC hearing and relied

solely on her submissions. Following oral argument, the judge issued an oral

decision and order denying plaintiff's requests to invalidate the Agreement,

enforce her claim for an elective share, and award equitable distribution of the

sale proceeds of the Florida Property. The judge granted defendants' cross-

motion and dismissed the complaint with prejudice.

      The judge found plaintiff's claim for an elective share was time-barred

under N.J.S.A. 3B:8-12 because she did not assert her claim within the


                                                                           A-3739-18T4
                                         7
prescribed six-month statutory period. The court rejected plaintiff's equitable

tolling argument, noting she did not provide, nor did the court find, any case law

supporting the proposition that "the time that it takes to undo the [prenuptial

agreement] reinstates the right to the elective share."

      In denying plaintiff's request to invalidate the Agreement, the judge noted

plaintiff failed to identify any evidence of, or sufficiently plead, fraud. Further,

the judge rejected plaintiff's contention that decedent engaged in unconscionable

conduct by not properly disclosing his financial matters before the Agreement

was executed.

      Finally, the judge found plaintiff's request for equitable distribution of the

Florida Property moot because the property was already sold.

      Plaintiff moved for reconsideration. In support, plaintiff submitted a

certification of her daughter, Helen Zimmerman, alleging that in May 2017, she

retrieved documents that showed that decedent "likely did not accurately set

forth his financial net worth to [plaintiff] at the time of the signing of the

Prenup." Attached as exhibits were: (1) decedent's 2011 and 2012 federal tax

returns; (2) Gillette Enterprises, Inc.'s 2012 federal and state corporate tax

returns; (3) a list of properties held by Gillette Enterprises, Inc. as of June 19,

2009, in which decedent held a 22% ownership interest, consisting of thirty-four


                                                                           A-3739-18T4
                                         8
buildings worth approximately $45,000,000; and (4) statements of decedent's

net worth as of December 31, 2008 (totaling $5,643,200), December 31, 2012

(totaling $15,426,059), and December 31, 2013 (totaling $15,884,501).          In

contrast, decedent's financial statement as of December 31, 2012—that was

attached as an exhibit to the Agreement—set forth a net worth of $16,051,296.

      The court found the information contained in the documents relied upon

by plaintiff was not new information because plaintiff or her daughter possessed

those documents for over a year before plaintiff filed her complaint. The court

further found that even if the documents were considered new evidence, the

purported discrepancies did not demonstrate decedent engaged in any fraudulent

conduct. The court concluded plaintiff did not provide any evidence that the

financial statement attached to the Agreement was inaccurate. Accordingly, the

court denied reconsideration. This appeal followed.

      Plaintiff raises the following points for our consideration:      (1) the

Agreement should be held unenforceable; (2) plaintiff's right to assert her

elective share should be preserved pending resolution of her claim that the

Agreement is unenforceable; (3) the court should impose a constructive trust

upon decedent's estate to prevent waste or improper transfer of assets; and (4)




                                                                       A-3739-18T4
                                       9
the court should grant plaintiff a cash bequest from decedent's estate in the

amount of the sale proceeds of the Florida Property.

      We have carefully reviewed the record and applicable principles of law

and conclude that plaintiff's arguments lack merit.

                                       II.

      Under New Jersey law, a surviving spouse "has a right of election to take

an elective share of one-third of the augmented estate" of a deceased spouse,

subject to certain "limitations and conditions." N.J.S.A. 3B:8-1. Pursuant to

N.J.S.A. 3B:8-12, the surviving spouse

            may elect to take [her] elective share in the augmented
            estate by filing a complaint in the Superior Court within
            [six] months after the appointment of a personal
            representative of the decedent's estate. The court may,
            before the time for election has expired and upon good
            cause shown by the surviving spouse . . . extend the
            time for election upon notice to persons interested in
            the estate and to distributees and recipients of portions
            of the augmented estate whose interests will be
            adversely affected by the taking of the elective share.

      On May 5, 2017, decedent's Will was admitted to probate and the

Executrix was appointed. Plaintiff received written notice of those events six

days later. Accordingly, plaintiff was required to assert her election to take an

elective share of decedent's estate as decedent's surviving spouse by filing a

complaint within six months of May 5, 2017. Plaintiff did not seek an extension

                                                                        A-3739-18T4
                                      10
of time and filed her complaint on July 12, 2018, more than fourteen months

after receiving notice that the Will had been probated.

      Plaintiff contends "equitable tolling should be applied" because "a party

should not be able to hide behind a statute of limitations defense when the lapse

was due to the misconduct of the party asserting the defense," citing Freeman v.

State, 347 N.J. Super. 11 (App. Div. 2002).        The trial court rejected this

argument, finding no evidence of such misconduct.

      In Freeman, the court noted "[e]quitable tolling may be applied where 'the

complainant has been induced or tricked by his adversary's misconduct into

allowing the filing deadline to pass.'" Id. at 31 (quoting Dunn v. Borough of

Mountainside, 301 N.J. Super. 262, 280 (App. Div. 1997)).           Absent such

conduct, "the doctrine of equitable tolling should be applied sparingly." Ibid.

(citing United States v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)).

      As we have noted, plaintiff was promptly notified that decedent's Will was

admitted to probate and an executrix was appointed. Plaintiff's counsel wrote

to estate counsel on September 18, 2017, to advise that plaintiff intended to

enforce her elective share of decedent's estate.      Plaintiff did not seek an

extension of the filing deadline. We concur with the trial court that the record

contains no evidence, nor does plaintiff appear to allege, that the Executrix or


                                                                         A-3739-18T4
                                      11
counsel for the Estate intentionally tricked or induced her into allowing the filing

deadline to expire. The record fully supports the court's finding that plaintiff

did not establish a factual basis for equitable tolling and that her claim for an

elective share was time-barred.

                                        III.

      We next address plaintiff's claim that the trial court erred by determining

the Agreement was unenforceable. We are unpersuaded by her argument.

      The right to take an elective share of the augmented estate of a deceased

spouse "may be waived, in whole or in part, by written agreement." In re Estate

of Shinn, 394 N.J. Super. 55, 61 (App. Div. 2007); accord N.J.S.A. 3B:8-10

(permitting waiver of an elective share "by a written contract, agreement or

waiver, signed by the party waiving after fair disclosure").

      Our courts have long held that prenuptial agreements are enforceable

assuming full disclosure of financial conditions, knowledge and accepta nce of

the terms and conditions of the agreement, and the agreement is fair and not

unconscionable. Rogers v. Gordon, 404 N.J. Super. 213, 219 (App. Div. 2008).

      In 1988, New Jersey adopted the Uniform Premarital and Pre-Civil Union

Agreement Act, N.J.S.A. 37:2-31 to -41. Under the Act, parties to a prenuptial

agreement may contract with respect to the "rights and obligations" of each party


                                                                           A-3739-18T4
                                        12
in any property in which either of them has an interest "whenever and wherever

acquired or located." N.J.S.A. 37:2-34(a). The agreement may also provide for

"[t]he disposition of property upon separation, marital dissolution, dissolution

of a civil union, death, or the occurrence or nonoccurrence of any other event."

N.J.S.A. 37:2-34(c). The agreement may also affect "[t]he making of a will,

trust, or other arrangement to carry out the provisions of the agreement ," and

"[t]he ownership rights in and disposition of the death benefit from a life

insurance policy." N.J.S.A. 37:2-34(e), (f).

      Plaintiff bears the burden of proof to set aside the Agreement. N.J.S.A.

37:2-38. A prenuptial agreement is unenforceable

            if the party seeking to set aside the agreement proves,
            by clear and convincing evidence, that:

            a. The party executed the agreement involuntarily; or

            b. (Deleted by amendment, P.L. 2013, c. 72).

            c. The agreement was unconscionable when it was
            executed because that party, before execution of the
            agreement:

                  (1) Was not provided full and fair disclosure of
                  the earnings, property and financial obligations
                  of the other party;

                  (2) Did not voluntarily and expressly waive, in
                  writing, any right to disclosure of the property or


                                                                        A-3739-18T4
                                      13
                   financial obligations of the other party beyond
                   the disclosure provided;

                   (3) Did not have, or reasonably could not have
                   had, an adequate knowledge of the property or
                   financial obligations of the other party; or

                   (4) Did not consult with independent legal
                   counsel and did not voluntarily and expressly
                   waive, in writing, the opportunity to consult with
                   independent legal counsel.

            d. The issue of unconscionability of a premarital or pre-
            civil union agreement shall be determined by the court
            as a matter of law.

            [N.J.S.A. 37:2-38.]

      We have previously held "that there is no material distinction between"

the requirement to provide "full and fair disclosure of the earnings, property and

financial obligations" under N.J.S.A. 37:2-38(c)(1) and the requirement of "fair

disclosure" under N.J.S.A. 3B:8-10. Shinn, 394 N.J. Super. at 63.

      Exhibit "A" to the agreement is decedent's financial statement identifying

and setting forth the values of his assets and liabilities as of December 31, 2012.

Article X indicates that plaintiff reviewed decedent's financial statement and

retained independent counsel "to review and represent her in conjunction with"

the Agreement prior to signing it. During the October 2018 hearing, the court




                                                                          A-3739-18T4
                                       14
rejected plaintiff's argument that decedent was required to produce more

information, including appraisals and bank statements.

      We review the trial court's factual findings that the Agreement satisfied

the requirements of either N.J.S.A. 3B:8-10 or N.J.S.A. 37:2-38, "by applying

the familiar standard that findings of fact should not be disturbed unless we are

convinced that they are 'so manifestly unsupported by or inconsistent with the

competent, relevant and reasonable credible evidence as to offend the interests

of justice.'" Shinn, 394 N.J. Super. at 65-66 (quoting Rova Farms Resort, Inc.

v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). However, a trial court's

"interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference." Id. at 66 (quoting Manalapan

Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

      Plaintiff cites Orgler v. Orgler, 237 N.J. Super. 342 (App. Div. 1989) and

an unpublished opinion 1 in support of the proposition that a sufficiently

"detailed financial statement would include not only the number values of the

assets listed, but how the number values were determined, as well as supporting



1
   Unpublished opinions do not constitute precedent, are not "binding on any
court," R. 1:36-3, "and cannot reliably be considered part of our common law,"
Trinity Cemetery v. Wall Twp., 170 N.J. 39, 48 (2001) (Verniero, J., concurring)
(citing R. 1:36-3)).
                                                                         A-3739-18T4
                                      15
documentation regarding the value of each asset listed." Plaintiff's reliance on

Orgler is misplaced.

      In Orgler, the court noted that the "'easiest device' to evidence" knowledge

of a party's financial condition "is by annexing to the agreement a list of assets

and their approximate values." Id. at 349 (quoting Marschall v. Marschall, 195

N.J. Super. 16, 33 (Ch. Div. 1984)). The court found the prenuptial agreement

unenforceable in part because "the parties appended no schedule of their

respective assets to the agreement." Ibid.

      Here, unlike in Orgler, decedent attached his financial statement to the

Agreement, which identifies "a list of assets and their approximate values." Ibid.

Plaintiff retained and consulted with independent counsel before signing the

Agreement.     In Article XVI, plaintiff acknowledged that she read and

understood the Agreement and "had ample opportunity to consult with legal

counsel."    Neither plaintiff nor her attorney requested additional financial

information before the Agreement was signed. Thus, unlike in Shinn, decedent

did not "deliberately refuse[] to make such a disclosure" or "stonewall[]" any

such requests for additional financial information. Shinn, 394 N.J. Super. at 70.

      We are satisfied that the trial court accurately interpreted and correctly

applied the requirements of N.J.S.A. 37:2-38. The motion record supports the


                                                                         A-3739-18T4
                                       16
court's determination that plaintiff did not meet her burden of proof by clear and

convincing evidence. We thus discern no reason to disturb the determination

that the Agreement was enforceable because it met the requirements N.J.S.A.

37:2-38 and, in turn, N.J.S.A. 3B:8-10.

                                        IV.

      Plaintiff argues the court erred in denying her motion for reconsideration

because she provided newly discovered evidence that calls into question the

accuracy of decedent's net worth as set forth in Schedule 'A' of the Agreement."

      Motions     for   reconsideration      are   governed   by    Rule    4:49-2.

"Reconsideration is a matter to be exercised in the trial court's sound discretion."

Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App.

Div. 2008). Reconsideration should be employed only "for those cases which

fall into that narrow corridor in which either 1) the [c]ourt has expressed its

decision based upon a palpably incorrect or irrational basis, or 2) it is obvious

that the [c]ourt either did not consider, or failed to appreciate the significance

of probative, competent evidence." Cummings v. Bahr, 295 N.J. Super. 374,

384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.

Div. 1990)). "A motion for reconsideration is designed to seek review of an

order based on the evidence before the court on the initial motion, [Rule] 1:7-4,


                                                                           A-3739-18T4
                                        17
not to serve as a vehicle to introduce new evidence in order to cure an

inadequacy in the motion record." Asterbadi, 398 N.J. Super. at 310 (citing

Cummings, 295 N.J. Super. at 384)). "Reconsideration cannot be used to expand

the record and reargue a motion." Ibid. "[T]he motion is properly denied if

based on unraised facts known to the movant prior to entry of judgment."

Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 4:49-2 (2020) (citing

Palombi v. Palombi, 414 N.J. Super. 274, 289 (App. Div. 2010); Del Vecchio v.

Hemberger, 388 N.J. Super. 179, 188-89 (App. Div. 2006)).

      Plaintiff's daughter certified she retrieved the purported new evidence in

May 2017. The trial court correctly rejected plaintiff's contention that the

documents were new evidence because plaintiff or her daughter had possession

of them for over a year before plaintiff filed her complaint in July 2018. On that

basis, the trial court properly denied reconsideration.

      For sake of completeness, the court examined the documents and found

the purported discrepancies did not demonstrate decedent engaged in any

fraudulent conduct. We reach the same conclusion. Accordingly, the trial court

did not abuse its discretion in denying plaintiff's motion for reconsideration.




                                                                          A-3739-18T4
                                       18
                                         V.

      Plaintiff further argues she is entitled to a constructive trust because of the

"numerous wrongful acts that were engaged in by the [d]ecedent," including

"masking his net worth, the amount of properties he owned and what those

properties were worth, which induced [her] to sign the [Agreement]." We

disagree.

      A constructive trust should "be used only when the equities of a given

case clearly warrant it." Flanigan v. Munson, 175 N.J. 597, 611 (2003). The

party seeking imposition of a constructive trust bears the burden of establishing

its right to that remedy by clear and convincing evidence. Dessel v. Dessel, 122

N.J. Super. 119, 121 (App. Div. 1972) (citations omitted).

      "[T]he imposition of a constructive trust requires a two-part finding that

the res has been received or retained through a 'wrongful act' which 'unjustly

enriches' the recipient." Thompson v. City of Atl. City, 386 N.J. Super. 359,

376-77 (App. Div. 2006) (quoting Flanigan, 175 N.J. at 608). A wrongful act is

typically "fraud, mistake, undue influence, or breach of a confidential

relationship," D'Ippolito v. Castoro, 51 N.J. 584, 589 (1968) (citing Neiman v.

Hurff, 11 N.J. 55 (1952)), but can include "innocent misstatements, or even




                                                                            A-3739-18T4
                                        19
simple mistakes," Flanigan, 175 N.J. at 609 (quoting Dan B. Dobbs, Remedies

§ 4.3 at 243 (1973)).

      The trial court examined the record, including the purported new

documents, and found no evidence of misconduct on the part of decedent. We

concur. Plaintiff's request for a constructive trust was properly denied.

                                        VI.

      Lastly, we address plaintiff's claim that, even though the Florida property

was titled solely in decedent's name, and was purchased fifteen years prior to

their marriage, she is entitled to equitable distribution because the property was

brought in anticipation of marriage. Plaintiff asserts that she visited properties

in Florida with decedent before the Florida Property was purchased, it served as

a marital vacation home, and her children regularly stayed at the property.

      The Family Part is authorized to equitably distribute assets "in all actions

where a judgment of divorce, dissolution of civil union, divorce from bed and

board or legal separation from a partner in a civil union couple is entered. "

Thieme v. Aucoin-Thieme, 227 N.J. 269, 283-84 (2016) (quoting N.J.S.A.

2A:34-23(h)). "The statute clearly addresses the distribution of property only

in the context of an action for divorce or the dissolution of a civil union. " Id. at

284 (citing N.J.S.A. 2A:34-23(h)); see also Carr v. Carr, 120 N.J. 336, 343


                                                                            A-3739-18T4
                                        20
(1990) (stating that "ordinarily, equitable distribution of marital assets arises

only with the adjudication of divorce").

      Here, the marriage was terminated not by divorce, but by decedent's death.

Plaintiff and decedent were not separated, divorced, or engaged in divorce

proceedings when decedent died.2 Accordingly, plaintiff is not entitled to the

statutory remedy of equitable distribution.

      In addition, the Agreement provides that equitable distribution shall only

apply to joint property acquired during the marriage. For this additional reason,

plaintiff has no right to equitable distribution of the sale proceeds of the Florida

Property, which was purchased solely in decedent's name long before the parties

were married and is listed in the Agreement under decedent's "personal assets."

      Affirmed.




2
  Indeed, even if a divorce action had been pending at the time of decedent's
death, "[d]ivorce proceedings abate with the death of one of the parties." Carr,
120 N.J. at 342 (citations omitted). Absent "highly unusual circumstances," that
are not present here, a claim for "statutory equitable distribution is conditioned
on the termination of marriage by divorce." Id. at 342-43. "Thus, with the death
of her husband, a judgment of divorce was no longer attainable by [plaintiff]
and, derivatively, equitable distribution under [N.J.S.A. 2A:34-23] also became
unattainable." Id. at 342.
                                                                           A-3739-18T4
                                        21
