When parties settle their cases, many if not most, expect that their agreement that they spent months or years negotiation will finally provide them with some peace. After all, if
Continue Reading Court Sells Vacation Home to Pay Alimony and Equitable Distribution Arrears
Terms Reached in Mediation Are Not Enforceable Without a Signed Agreement
In the recent unpublished (non-precedential) decision of Mathurin v. Matrhurin, the Appellate Division again confirmed that (1) agreements reached in mediation are not binding unless the terms are reduced
Continue Reading Terms Reached in Mediation Are Not Enforceable Without a Signed Agreement
IS WILLFUL FAILURE TO COMPLY NECESSARY FOR AN ORDER TO BE ENFORCED?
You see it all of the time. In defense of an enforcement motion, a litigant says “I didn’t knowingly violate the Order”, “I didn’t willfully violate the Order”, “it wasn’t
Continue Reading IS WILLFUL FAILURE TO COMPLY NECESSARY FOR AN ORDER TO BE ENFORCED?
Can What a Lawyer Says Bind Their Client?
I have recently had a case where the other attorney would tell us one thing on the phone and another to the Court or in Court papers. When called on this
Be Careful What You Bargain For Without the Advice of Counsel
It is common and often unfortunate that I meet with clients who decided, for whatever reason, that they would represent themselves during a divorce proceeding. There are cases where that decision may be perfectly acceptable. More often than not, the people I have met are coming to me because they are totally unsatisfied and/or unhappy with the deal they’ve made for themself and are looking to an attorney to get them a better deal. Sometimes this is a possibility. However, when the ink is dry on that formal agreement, it makes things more complicated.
Recently, the Appellate Division affirmed a lower court’s decision regarding the enforceability and conscionability of an Agreement negotiated and reached by the parties and formalized by husband’s attorney. Wife chose to remain self represented during the negotiations and execution of the Agreement.
After husband made a post-divorce application in the trial court to enforce the Agreement, wife challenged its validity, claiming unconscionability, inequity, unfairness and that it was obtained through fraud. The trial court conducted a two day hearing during which both parties and husband’s attorney testified. Thereafter, the trial court rejected wife’s arguments that the Agreement was invalid, unfair, inequitable and procured through fraud.
Continue Reading Be Careful What You Bargain For Without the Advice of Counsel
Counsel Fee Award on Enforcement Motion Reversed as Being too Low
I have recently blogged about the need for courts to award counsel fees when a party successfully enforces an agreement or an Order. As noted, all too often, court’s do
Continue Reading Counsel Fee Award on Enforcement Motion Reversed as Being too Low
Provision for Payment of Counsel Fees for Non-Compliance in Settlement Agreement Enforced by the Appellate Division
Very often, when parties settle their cases, in their Marital Settlement Agreement (a/k/a Property Settlement Agreement), there is a provision to the effect that if a party does not comply with the Agreement, they will be liable for the other party’s fees if the Agreement has to be enforced in Court. That said, court’s more often than not disregard that paragraph (as well as the Rule 1:10-3 which suggests an award of counsel fees when a party fails to comply with an Order), and apply the typical matrimonial case law and court rules regarding fee shifting in a matrimonial matter, if the court gives any real consideration to the issue, at all. The aggrieved litigant is often frustrated by the fact that they had to incur fees to get something that they were already entitled to. The offending party is sometimes empowered because he or she has suffered no negative result from the failure to comply.
However, in a refreshing unreported (non-precedential) opinion in the case of Ullmann v. Ullmann decided on March 23,2011, the Appellate Division held that it was improper for the trial court to ignore that provision in the parties’ agreement.