We have all seen and heard those familiar words in the title of this entry in moves or on TV.  This is part of the "Miranda" warning administered by a police officer when they are arresting someone.  Do these words also have a place in divorce court?  Not in the same way, but in reality they do.

Other than settlement communications, attorney/client and other privileged communications, everything else is just about fair game.  That is why Facebook, emails and texts have become such a treasure trove in divorce cases as people freely put things in writing that they might not otherwise say, and perhaps even broadcast it to the world.

But what about what you say in another court in another case?  Can that be used against you?  Sure can.  The concept is called judicial estoppel, and it was on display again yesterday in the unreported (non-precedential) decision from the Appellate Division in Romano v. Romano.

Without getting in to all of the details of this case, the relevant details relating to judicial estoppel are as follows,  On the wife’s name was on the deed of the marital home, a finding made by a judge during a domestic violence trial, despite the husband claiming he was on the deed.  Thereafter, the husband filed for bankruptcy relief.  In that filing, he answered "none" on the part of petition asking if he had a legal or equitable interest in any real property.  In the later divorce case, he listed the aforementioned home as a marital home subject to equitable distribution. 

The trial judge awarded the home to the wife based on the husband’s representation to the bankruptcy court that he had no interest in the property.

The Appellate Division affirmed, noting:

Judicial estoppel is intended to protect the integrity of the judicial process. Cummings v. Bahr, 295 N.J. Super. 374, 387 (App. Div. 1996) (citing Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982)). It "operates to ‘bar a party to
a legal proceeding from arguing a position inconsistent with one previously asserted.’" Id. at 385 (quoting N.M. v. J.G., 255 N.J. Super. 423, 429 (App. Div. 1992)). The doctrine "prevents litigants from ‘playing fast and loose’ with, or otherwise manipulating, the judicial process." State v. Jenkins, 178 N.J. 347, 359 (2004) (quoting N.J. Dep’t. of Law & Pub. Safety v. Gonzalez, 142 N.J. 618, 632 (1995)). "Central to that concern is the principle that a litigant should not be allowed to
mislead courts by having one tribunal rely on his or her initial position while a subsequent body is led in a different direction." Ibid.

The applicability of judicial estoppel as a complete bar to a subsequent inconsistent claim arises "when a party advocates a position contrary to a position it successfully asserted in the same or a prior proceeding." Ali v. Rutgers, 166 N.J. 280, 287
(2000) (internal citations and quotations omitted). A prior successful assertion of a contrary position is required because "[a] party is not bound to a position it unsuccessfully maintained" in a prior lawsuit. Id. at 288 (internal citations and quotations omitted). As with most judicially crafted remedies, judicial estoppel should be invoked only to prevent a miscarriage of justice. Ibid.

Here, John’s conduct provides almost a textbook example of facts calling for the application of judicial estoppel. By his own admission, John advanced inconsistent positions regarding his interest in the marital home. John failed to disclose his
alleged interest in the home in the petition he filed under oath before the federal bankruptcy court.   In addition, John filed an amendment to his bankruptcy petition in September 2010, but did not alter this critical detail. A bankruptcy plan was subsequently approved based on John’s financial representations.

John’s testimony that his bankruptcy lawyer advised him to deny any ownership interest in the marital home does not absolve him of responsibility for his  certification. John did not call his bankruptcy attorney to testify as support for his assertion. Certainly, a witness should not be permitted to hide behind the
unsubstantiated excuse that his lawyer told him to lie on a sworn document.
John’s assertions in support of this action before Judge Becker are materially irreconcilable with the position he adopted before the federal bankruptcy court. The judge did not abuse his discretion in finding that John was attempting to manipulate the legal system to his advantage and to the disadvantage of his creditors and Dana. The application of judicial estoppel is warranted under such circumstances.

The bottom line is that you cannot select a different story to get the best result based upon the audience at the time. When you do, whatever you say can and will be used against you in the next proceeding, as the husband found out in this case.


Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.