You have requested our opinion as to whether a house jointly owned by Ramona A~ and
her ex-husband, Jesus M~, is considered a resource to Ms. A~. We conclude Ms. A~'s
interest in the house is a resource to her.
You have informed us that Ms. A~ and her ex-husband jointly own a house at 218 Sheridan
Street, in Perth Amboy, New Jersey. They purchased this property while they were married.
Ms. A~ does not have a copy of the deed to the house and does not remember how title
to the house is held. As part of their October 1990 divorce, Ms. A~ and Mr. M~ mutually
agreed that the house was to be put on the market within 30 days of the divorce judgment.
Ms. A~ was to receive fifty-five percent of the proceeds; Mr. M~, forty-five percent.
(Divorce Decree, filed October 15, 1990). Mr. M~, however, has refused to sell the
house. He still lives in it and has submitted a letter asserting that it would cause
undue hardship to him if he were forced to sell the house.
In New Jersey, title to property held by two or more people can be held in one of
three ways: as a tenancy by the entirety, as a joint tenancy, and as a tenancy in
common. See N.J.S.A. §§ 46:3-17, 46:3-17.1, 46:3-17.2. Absent an expressed intent
to the contrary, a conveyance to a husband and wife vests title to them as tenants
by the entirety. N.J.S.A. § 46:3-17.3. See also Celentano, 13 New Jersey Practice
§ 5.14 (citing 1 Patton on Titles § 236, Fulper v Fulper 54 N.J.Eq. 431, 34 A. 1063
(Err. & App. 1986); Cadgene v. Cadgene, 17 N.J.Misc. 332, 8 A.2d 858 (Sup.Ct. 1939),
aff'd 124 N.J.L. 566, 12 A.2d 635 (Err. & App. 1940). Thus, most probably, prior to
their divorce, Ms. A~ and Mr. M~ held their property as tenants by the entirety.
New Jersey law makes clear that during marriage, neither spouse may unilaterally sell
his or her interest in the tenancy by the entirety. N.J.S.A. § 46:3-17.4. However,
a divorce terminates a tenancy by the entirety and converts it to a tenancy in common.
Celentano, 13 New Jersey Practice § 5.7; § 5.13 (citing Freda v. Commercial Trust
Co. 118 N.J. 36, 570 A.2d 409 (1990)); and § 5.17 (citing Gery v. Gery, 113 N.J.Eq.
59, 166 A. 108 (Err. & App. 1933). Sbarbaro v. Sbarbaro, 88 N.J.Eq. 101, 102 A. 256
(Ch. 1917); Eberle v. Somonek, 24 N.J.Super. 366, 94 A.2d 535 (Ch. Div. 1953), aff'd
27 N.J.Super. 279, 99 A.2d 377 (App. Div. 1953); Lawrence v. Lawrence 79 N.J.Super.
25, 190 A.2d 206 (App. Div. 1963)). Thus, Ms. A~ most likely now holds her interest
in the house as a tenancy in common with Mr. M~.
A tenant in common may freely convey her undivided interest in the common property,
either to her co-tenant or to a stranger. Casner, American Law of Property § 6.10;
Campbell v. Hough et al., 73 NJ Eq. 601, 68 A. 759 (Ch. 1908). Because Ms. A~ may
sell her undivided interest in the property, her fifty-five percent interest in the
house is a resource to her. 20 C.F.R. § 416.1201(a) and (c).