As a litigant, you can only agree to settle based on what you know.  When the other party details their income, assets and liabilities by anwering discovery and producing documents under oath, signing a Case Information Statement under oath also detailing such information, testifying during a deposition that there exists nothing else, asserting throughout a

We have recently blogged on the requirement that there be oral argument on substantive motions if it is requested.  Another requirement is that court’s should hold plenary hearings (i.e. trials) when there are conflicting certifications regarding a material fact in dispute.  That requirement was made clear again in the unreported (non-precedential) decision in Marquez v. Cabrera released on July 15, 2010. 

In this case, the Property Settlement Agreement provided that the wife got to keep two pieces of real estate owned by the parties, seemingly their largest assets, while the husband remained responsible for some debt associated with the properties.  This does not seem to pass the smell test on its face, a fact not lost on the Appellate Division in its decision.  The husband moved to set aside the agreement, alleging fraud – essentially that a signature page from a different agreement was appended to the one filed with the court on the day of the divorce hearing.  Of course, the wife denied this.  There was some credence on its face to the husband’s arguments given that there were two page sevens of the agreement. 

In any event, the trial court  denied the motion finding the wife more credible.  The problem there is that court are not supposed to make credibility determinations on mere certifications alone.  Rather, as noted above, if there are competing certifications, a plenary hearing must be held.  As such, the matter was reversed for a plenary hearing.  In addition, the Appellate Division held, "because the motion judge made credibility determinations and "may have a commitment to [her] findings," the plenary hearing must be conducted before a different judge." 


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We have all heard stories about spouses hiding assets to keep them away from the other spouse during a divorce.  In fact, I am sure that many lawyers have even had clients ask how they can do it.  Hopefully, the lawyer told them the straight answer -don’t do it – and if you do and get caught, it will be far worse for you. 

A litigant named Eric Barzda learned this the hard way as noted in the unreported decision (non precedential) Appellate Division decision released on March 3, 2010.

In this case, in 1996, Mr. Barzda was  was going through a divorce proceedings with his former wife.  While the divorce  was pending and even thereafter, he feared that his wife would assert a claim against property in Hightstown he acquired with his girlfriend, the defendant in this matter.  In order to  shield this property from a claim from his wife, he transferred his interest in the property to the girlfriend for $1.  However, he claimed that there was an oral agreement that he would be a silent partner.  He later filed for bankruptcy relief and did not list this property as owned by him in the bankruptcy – obtaining a discharge in what was deemed a no asset case.


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The New Jersey Appellate Division has held that an application seeking to set aside a Property Settlement Agreement (PSA) under Rule 4:50-1 of the New Jersey Rules of Court should be granted "sparingly."  It was this very type of application that formed the basis of the Appellate Division’s recent opinion in Heald v. Heald, found here.

The parties were married for 28 years and had 4 children before the Final Judgment of Divorce was entered in November 2006.  They had separated in 2005 and, for a significant period of time, negotiated the terms ultimately encompassed in a PSA, executed in April 2006.  Notably, the parties agreed to use the Husband’s 2004 income to determine his support obligations.  The PSA also contained language that the parties were knowingly waiving their right to discovery regarding each other’s income and assets.


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