Stare decisis is Latin for “to stand by things decided.”  In short, it is the doctrine of precedent. The significance of stare decisis and reliance on legal precedent has never been questioned.  However, it can make law difficult and slow to change.

When I was teaching Law & Society, I often asked my class which one comes first.  In other words, does law change first and then society?  Or, does society change and then the laws slowly adjust to social pressure?   My students were always frustrated when I told them that there is no right or wrong answer—it depends on the facts and circumstances.   Such a situation has occurred in New Jersey’s matrimonial law regarding pendente lite relief.

In the past, distribution of the proceeds from the sale of a martial asset not occur until the final judgment of divorce (See Grange v. Grange, 160 N.J.Super. 153, 158-59, 388 A.2d 1335 (App.Div.1978)).  The Grange case in the 1970s was the seminal decision relied upon.  However, in current society, when foreclosure of the marital home can occur simultaneously with the divorce proceeding, the court has the power to grant the pendente lite sale of a marital home to avoid the wasting of the value of an asset (such as the equity in a marital residence).

In 2005, the court determined that N.J.S.A. 2A:34-23 granted “a matrimonial judge broad discretion and authority to fashion sagacious remedies on a case by case basis, which will achieve justice” Randazzo v. Randazzo, 184 N.J. 101 (2005).  The Randazzo Court recognized that families might require emergent relief  when the “basic living expenses cannot be paid in any other way”  (Supreme Court Committee on Matrimonial Litigation, Phase Two, Final Report, 81 N.J.L.J. Supp. at 1 (July 16, 1981)).

According to Randazzo, consistent with N.J.S.A. 2A:34-23 and R. 5:3-5, the trial court has discretion to order the sale of marital assets, including the marital residence, to enable the parties to use the proceeds in a manner as “the case shall render fit, reasonable, and just.”  To support the change in legal precedent, the Randazzo court refers to the holding from Pelow v. Pelow, 300 N.J.Super. 634, 636 (Ch.Div.1996) citing to Glatthorn v. Wisniewski, 236 N.J.Super. 504 (Ch.Div.1989); Graf v. Graf, 208 N.J.Super. 240 (Ch.Div.1985); Witt v. Witt, 165 N.J.Super. 463 (Ch.Div.1979) “that Grange should not control where the sale was necessary “to avoid irreparable harm to a spouse and/or the children.”

The realities of modern finances have acted to change legal precedent.  This does not occur quickly because law favors the status quo and legal predictability.  Nonetheless, the ability of law to evolve keeps the relationship between law and society and society and the law in a constant state of balance and counter-balance.  Such is the nature of the dynamic process of the rule of law.

Sherri Ruggieri is the managing editor of Empire State News. A practicing attorney for over 20 years, Ms. Ruggieri is also chairperson of Edison Township’s Planning Board. Additionally, she has served as a college professor, with nearly a decade of experience in teaching law and political science courses.