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of the capital gains tax entirely on the husband would materially
distort the one-third/two-thirds distribution that the New Jersey
court intended.
Under New Jersey law, equitable distribution is not to be
skewed along fault lines. N.J. Stat. Ann. sec. 2A:34-23.1 (West
1987 & Supp. 1995); Chalmers v. Chalmers, 320 A.2d 478, 482 (N.J.
1974); Tweedley v. Tweedley, 649 A.2d 630, 633 (N.J. Super. Ct.
Ch. Div. 1994); Kothari v. Kothari, 605 A.2d 750, 755 (N.J.
Super. Ct. App. Div. 1992). Assuming as we do that Howard and
Alice Berger originally intended an approximately equal
distribution, we have no reason to believe that they also
intended, as Alice Berger now would have it, that Howard Berger
was to bear the entire burden of the Federal income tax known to
inhere in the deposits and unrealized receivables attributable to
crypt sales of the Phase II mausoleum completed in 1989, as well
as the gain on the sale of Woodbine to the Kunkowskis.
Looking at the asset allocation under the settlement
agreement, see supra p. 12, it's obvious that there would be a
substantial imbalance in favor of Alice--to the detriment of
Howard's estate--if he were subjected to all Federal income tax
4(...continued)
lie to the Court of Appeals for the Third Circuit. We cite and
apply the approach of the Court of Appeals in Yonadi because that
court has special familiarity with New Jersey law, which governs
the marital property rights of Howard and Alice Berger, and
because we find persuasive its approach to arriving at an
understanding of the interaction of the New Jersey equitable
distribution law and the Federal tax law.
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