Case Law Developments: Jurisdiction of Court to Order Partition of Cohabitant's Property in Protective Order Action

In a case involving a six-year litigation between cohabitants, the New Jersey appellate court held that the trial court did not err in ordering equitable partition of cohabitant's property even though the action had been brought initially as a protective order action.  The court found that the partition remedy, while not within the scope of the protective order statute, was within the trial court's general equitable powers and that the court could include partition with the protective order action, rather than requiring that a separate case be filed. 

Mitchell v. Oksienik, 2005 N.J. Super. LEXIS 267 (September 2, 2005)

After cohabiting and raising children together for nine years, plaintiff brought an action under New Jersey’s protective order statute asking for a restraining order against her partner.  The proceedings stemming from that original complaint lasted six years.  As part of these extended proceedings, the court ordered that the house the couple had purchased together (though held in her partner’s name only) should be sold and the proceeds divided.  Defendant argues that this order was outside the court’s jurisdiction under the protective order act.  The New Jersey Court of Appeals upholds the trial court decision on the basis that division of property interests held by cohabiting couples are properly decided by the family court’s general equitable power and that it is not error for the trial court to combine the issue of partition with the protective order decision in the interests of judicial economy rather than requiring that a separate action be filed. 

BGF