We previously blogged in 2014 about Marsico v. Marsico, where the trial court barred a litigant from appearing and testifying in a divorce matter through a designated power of
Continue Reading Reported Appellate Division Decision Touches on Incapacitation, Guardianship & Divorce
Frequently, judicial opinions cite the cases that say settlement of disputes ranks high in New Jersey’s public policy. Accordingly, it is very difficult to get a trial court to set
Continue Reading Appellate Division Overturns Order Denying Motion to Vacate 8 Year Old Divorce for Fraud
There are many cases that say that the settlement of litigation ranks high in the public policy of this state, As such, there are many cases that say that an agreement can be enforced, even if it is not reduced to a writing, if the major terms have been agreed to. As my client learned in Brawer v. Brawer, the unexpressed intention not to be bound is irrelevant. There is no place in the law for second thoughts where the parties have expressed their agreement. In fact, in a case called Bistricer, the judge said:
… the proposition that a case is not settled until the last “i” is dotted and the last “t” is crossed on a written settlement agreement carries the germ of much mischief. A party could, in bad faith, waste the time of the court and the other litigant in protracted settlement negotiations, and then, after a “framework” has been established, wiggle out of that framework by creating a flood of new issues and questions.
Just as you can’t wiggle out of a settlement, similarly, you cannot appeal a settlement. This issue reared its head in the case of Courboin v. Courboin, an unreported (non-precedential) opinion decided on February 21, 2013. In this case, after two days of trial, the parties settled and put their settlement on the record. The husband testified that he agreed to be bound. As part of that settlement, the home was to be sold.
Continue Reading If You Enter Into An Agreement or Consent Order, You Can't Appeal It
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 That requirement was made clear again in the unreported (non-precedential) decision in Marquez v. Cabrera released on July 15, 2010.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."
Today I came across a blog entry by a divorce mediator which was nothing short of an attack on "best lawyers." It appeared as though the ills of the divorce
Previously I blogged on the issue of mediation and my skepticism of the process under certain circumstances. This week there was a spirited discussion regarding the issue of mediation on the
Continue Reading Mediation – Is the Mediator’s Goal a Fair Settlement or Any Settlement?
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.