Fox Rothschild LLP

Beware, once a party has entered into a written agreement addressing all marital issues, it is very difficult for either party to be relieved of an obligation required by the agreement especially if the agreement was incorporated into a Final Judgment of Divorce.   It is quite common for litigants to state that they wanted to get the divorce “over with” because the other side made life “unbearable” and as such were “pressured into” signing on the dotted line. However, these types of situations do not necessarily form the basis for a Court to hold written agreements unenforceable. I am writing this Blog because yet another person has asked me why I think it is unwise to purchase a “do-it-yourself-divorce kit”. I am told that these divorce kits contain all the forms necessary to proceed with a divorce. What the kits don’t tell you is that if you proceed with a divorce and you incorporate a written agreement that you and your spouse entered without the benefit of legal advise, if it turns out that the agreement is unfair based upon information that you later find or that you find the agreement unfair only after you effectuate the terms of the agreement, you may find yourself stuck with the agreement. Therefore, to avoid being sorry later on, it is imperative that you do not enter into any written agreement simply for the sake of “getting the divorce done” and without thoroughly reviewing your situation with an attorney. 

It is important to note that New Jersey has a strong policy favoring enforcement of agreements. “Property Settlement Agreements” are used as vehicles to efficiently and expeditiously resolve divorce litigation. The Courts encourage parties to enter into agreements to resolve the personal issues created by divorce including custody, visitation, alimony, child support and equitable distribution. Moreover, marital agreements allow the parties to resolve these personal issues in such a way that best fits each party and the children’s needs. The parties also have the ability to assume certain obligations that they otherwise would not have if the Court were to conduct a trial and render a ruling. In other words, in negotiating agreements, the parties are not bound by what the Court can or can not do if the matter were to go to trial so long as the agreement is entered voluntarily and fairly.Accordingly, Property Settlement Agreements that have been knowingly and voluntarily executed by divorcing spouses are entitled to considerable weight with respect to their validity and enforceability such that a presumption of validity is present. Although such agreements can be avoided on grounds of fraud, duress or unconscionability, the party challenging the agreement bears the burden of demonstrating that the agreement is unfair and inequitable. Furthermore, a Property Settlement Agreement that is incorporated into a final judgment of divorce may be set aside pursuant to New Jersey Court Rule 4:50-1, Grounds of Motion for Relief from Judgment, among other reasons, if there was fraud, misrepresentation, or other misconduct of the adverse party.Continue Reading Are Written Agreements That Were Negotiated Without Attorneys Enforceable?

 Now that you have made the determination that you want to proceed with a divorce, you wonder what is/are the next steps. The following is a summary of the Procedural Steps in a Divorce Litigation and a summary of substantive issues that may be addressed in the divorce proceedings.

 

Procedural Steps for Divorce Litigation in New Jersey

 

1.         The Filing of the Complaint: All divorce cases officially begin with the filing of a Complaint with the Family Court. The Complaint is the first pleading filed with the Court and it must be filed before any requests can be made to the Court such as requests for support or custody. There are filing fees associated with the filing of every Complaint.

 

2.         After the Filing of the Complaint: Once the Complaint is filed, it is returned to your attorney, who serves it on the opposing party or the opposing attorney, if one has been retained. Service is usually accomplished by mailing the Complaint to the opposing attorney, along with an Acknowledgment of Service which they sign and return. You will also file an Affidavit of Insurance Coverage which states the types, extent and beneficiary of your insurance policies; in most cases, the party responsible for maintaining insurance coverage before the filing of the divorce complaint must continue to maintain that coverage unless a Court enters a different Order. After the service of a Divorce Complaint, you will be asked to fill out a “Case Information Statement” (“CIS”) which sets forth your personal and family assets, liabilities, income and expenses. In some cases, it may be appropriate to reflect past and/or projected expenses. It is extremely important that the CIS be as accurate and complete as possible because the Court and the attorneys will use the CIS throughout the case in assessing support and property distribution issues.Continue Reading Getting Divorced and Where to Start

New Jersey has upheld the long standing principle that permanent alimony awards are subject to review, modification and possibly termination based upon changed circumstances.  (Lepis v. Lepis, 83 N.J. 139 (1980).  However, it is not enough to paint a bleak picture of a payor’s financial circumstances in order to succeed in a downward modification or termination of alimony.  The applicant must also show the Court that the financial difficulties being encountered are not temporary and/or subject to contingent circumstances.  Innes v. Innes, 117 N.J. 496 (1990).

In the recent unreported Appellate Division decision of Norych v. Norych (A-2633-07T1 decided April 16, 2009), while the payor applicant provided the court with very grim descriptions of his personal financial situation and the financial affairs of his law firm, the applicant miserably failed to substantiate his professed circumstances.

In the Norych matter, the parties were divorced in 1992 and at the time of the divorce, the ex-wife received a permanent alimony award of $1,000 per month partly based on ex-husband’s law firm income of $70,000 per year and ex-wife’s income as a teacher of $25,000 per year.  Ten years later, the alimony increased to $1,100 per month.  In October 2007, ex-husband filed a Motion seeking to terminate his alimony obligation based upon  what he characterized as two devastating and shocking events. 

Continue Reading Painting a Grim Financial Picture…Is It Enough To Obtain a Decrease Or Termination Of Support?

In New Jersey, a family court judge has authority to award counsel fees to one of the litigants pursuant to Rule 4:42-9(a)(1);  Rule 5:3-5(c); and the New Jersey Supreme Court decision of Williams v. Williams, 59 NJ 229, 233 (1971).  Additionally, a court is guided by the "the factors set forth in the court rule on counsel fees, the financial circumstances of the parties, and the good or bad faith of either party".  Often, litigants mistakenly assume that the litigation will ultimately be funded by the other party based upon their belief that the other party acted in bad faith.  Robert Campbell, a litigant in the March 31, 2009 unreported Appellate Division decision of Sheinbaum v. Campbell, learned (the hard way) that a counsel fee request does not rise and fall with a litigant’s belief that the other party acted in bad faith. 

The underlying facts of  Sheinbaum v. Campbell indicates a long tortured emotional history between the parents of a child with special needs.  The parties resided in Massachusetts.  Less than a year after the parties were married, they separated.  At the time of their separation, plaintiff was pregnant.  The child was born five months after the separation.  Four months after the child was born, the parties divorced but the divorce did not address custody of the child.  Thereafter, plaintiff and the child moved to New Jersey.    In New Jersey, plaintiff filed a Complaint seeking custody, child support and an order limiting defendant’s parenting time, a trial court litigation spanning three years.  During the three years of litigation, numerous orders were entered concerning parenting time and child support.  When the initial parenting time order was entered, defendant’s parenting time was supervised.  During the litigation, defendant’s parenting time became unsupervised, increased and eventually, defendant had limited overnight parenting time. Continue Reading If I Win, Do I Get Counsel Fees?