I recently wrote a blog entitled "Sloppy Drafting of Marital Settlement Agreements Can Cause Great Harm, Usually to Only One of the Parties."   I am reminded why I wrote that post because as I read the new cases decided each day, it fortifies my belief that settlements must be clearly reduced to writing and that every effort should be made so that the document can only be interpreted in one possible way. I say this because as I read these cases and see the results based upon interpretations of agreements, I think that this could not be what the parties really intended.  

Specifically, two cases decided in the last two days jumped out at me and left me thinking "I see what the agreement says, but that really cannot be what the parties’ meant."

In Schaefer v. Kamery, an unreported (non-precedential) case decided on November 19, 2012, the holding of the trial court, that limited duration alimony continue even after the recipient remarried was upheld.  How can that be you ask since there is a statute (N.J.S.A. 2A:34-25) that says alimony terminates on remarriage?  How can that be you ask because you know that there is case law that says that rehabilitative alimony many continue after remarriage, because the rehabilitation plan is goal oriented (i.e. to get someone back in the workforce or improve their earning ability), which goal exists irrespective or remarriage.

The reason that alimony did not terminate on remarriage in this case is that the Property Settlement Agreement contained the following language:

Payment of alimony shall cease only upon the first to occur of: (1) the
expiration of the alimony term set forth above; (2) Husband’s death; or (3) Wife’s
death. The parties agree Wife’s involuntary termination from her current employer or
permanent disability preventing her continued employment shall be a changed
circumstance justifying review of Wife’s alimony obligation. No change in Husband’s
circumstances other than death shall constitute a changed circumstance affecting Husband’s right to alimony.

Part of the rationale for denying the motion was the aforementioned language and the fact that there may have been other interrelated financial terms.  Not also, the payor previously sought and was denied modification based upon cohabitation.  In fact, the current motion was the third motion to modify.

Having the benefit of 50-50 hindsight, unless someone was trying to pull a fast one and was planning on filing the motion because they knew that the support recipient was in a relationship, the better practice might have been to specifically say that remarriage and/or cohabitation would not impact the alimony, especially if there was not a real meeting of the minds on this issue.  Doing so may have saved the legal fees for 3 motions and an appeal.

The second case, Verengio-Olivo v. Donovan, also unreported, was decided on November 16, 2012.  In this case, the Appellate Division upheld a trial court ruling that the ex-wife share in enhanced pension benefits, acquired post-divorce, including three years of creditable service obtained when the ex-husband borrowed from his share of the pension. 

How did this happen since post-Complaint assets are usually not subject to equitable distribution?  How can this happen when, though the case law might equitably divide post retirement pension enhancements gratuitously given by an employer, here the enhancement was actually purchased by the ex-husband from his share of the asset?

In this case, the parties were unrepresented at the time of the divorce and the Judgment that they entered into stated "plaintiff [wife] shall receive half of defendant’s [husband’s] 401K and Pension benefits and waives her rights to any alimony payable to her . . . . "  Moreover, though a coverture fraction would normally be used and/or an agreement would typically define the right, even a 50% right, to that acquired from date of marriage to date of complaint, the court took a more simplistic approach and took the plain meaning of the words that the parties used.

While this seems like an unfair result, since in actuality, it appears as though the wife is getting more than 50% since it was the husband’s asset that created the extra years, courts are typically not supposed to breath life or a different meaning when the words are clear and not subject to more than one interpretation. 

Again, it cannot be reiterated enough that the intention of the agreement, where ever possible (and as noted in my other blog post noted above, it is not always possible for a variety of reasons), should be clearly set forth so that one party is not hurt or gets a worse deal than they thought they bargained for.


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.