Is there a “do over” in divorce?

Posted on September 20, 2013 by Sandy Durst

Settling a divorce case often comes at the 11th hour and after intense, drawn out settlement discussions.  A settlement is a collection of mutually acceptable compromises and a settlement cannot be properly viewed as a win or lose proposition.  Frankly, no one ever gets all that they want regardless of whether the case is settled by the parties or by a trial.  Occasionally, one party may have “buyer’s remorse” and wish to undo the settlement in whole or in part.  When seeking to do so, the litigant has a very tough burden to satisfy.  The Court will generally hold the parties to the agreement they reached absent a showing a fraud, duress, coercion, and the like as the summary below describes.  It is difficult to get a do over once the case has been settled and properly documented.

FAMILY LAW
20-2-1373 Salama v. Salama, App. Div. (per curiam) (17 pp.) Plaintiff appeals from a Family Part order, which entered an amended dual judgment of divorce incorporating an oral settlement, and a Family Court order which denied her motion for reconsideration and to vacate the settlement and ADJD. The panel affirms, finding no reasons to disturb the judge’s appropriate exercise of discretion in denying the motion for reconsideration. The settlement placed on the record constitutes the parties’ agreement, as it continued the essential terms of the settlement and, therefore, the written document that fleshed out the verbal agreement is enforceable as plaintiff did not timely object and it does not change the basic agreement. Further, plaintiff’s unsupported certification, including her completely uncorroborated claims of fraud and coercion, were not sufficient to warrant either an order in her favor or a hearing to resolve a factual dispute.

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Court recognizes flaws with revised NJ palimony law

Posted on September 19, 2013 by Sandy Durst

Those advocating for wholesale alimony reform would be well served by examining the disastrous, but entirely foreseeable, consequences of the recently revised law concerning palimony in New Jersey.  This experience should serve as a warning to what can happen when we allow the law to be changed due to political and personal agendas.  The palimony law, through the statute of frauds,  was amended so as to render any oral agreement or promise regarding support, sharing of assets, use of a home, etc., unenforceable.  All palimony agreements must be in writing to be enforceable. The legislature made this draconian requirement retroactive and applicable to all palimony agreements; even those entered into an relied upon prior to the revisions.  I have met with several potential clients who have been devastated by this new law.  There is presently a case before the NJ Supreme Court seeking to have the justices rule that the new law will not apply to old agreements.  I for one hope the Justices of the Supreme Court recognize the inherent inequities in the current law and correct the situation and enable people to resume relying on their previously entered into promises.  Until that case is decided, at least on trial level judge is doing what he can to grant relief to those who need it.

 

Exception Found to Law Requiring Palimony Pacts To Be in Writing
In what appears to be a case of first impression, a judge has found an exception to the 2010 New Jersey law that outlawed palimony without written agreements. Superior Court Judge Ned Rosenberg found that Sharon Joiner-Orman — by her 39 years of companionship to actor Roscoe Orman, as homemaker and mother of their four children — “fully performed her end of the bargain,” and that to permit Orman to avoid his promise to take care of her financially for the rest of her life would work a fraud.

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NJ Appellate Court appears to modify DV law

Posted on September 1, 2013 by Sandy Durst

In a recent unreported decision, the NJ Appellate Division authored the opinion summarized below.  What is interesting about this decision is the additional requirement that the trial judge must determine if other forms of relief are available in the pending divorce case that could eliminate the need for a restraining order.  Having handled many domestic violence cases I am aware of no basis for this reform in the existing law and am conflicted over whether or not is in a appropriate modification to the standing body of NJ domestic violence law.

FAMILY LAW 20-2-1125 E.B. v. M.N., App. Div. (per curiam) (15 pp.) Defendant M.N. appeals the Family Part’s final domestic violence restraining order (FRO) in favor of his wife, plaintiff E.B. E.B. sought and received a temporary restraining order (TRO) pursuant to the Prevention of Domestic Violence Act of 1991. She alleged that M.N. had made terroristic threats against her in a text message. Her complaint referred to a prior incident of domestic violence in 2011, which involved allegations of threats and physical assault. The 2011 complaint had been withdrawn by E.B. prior to a hearing on the merits. Here, prior to the start of the trial, E.B.’s attorney moved to amend the DV complaint to add a claim that M.N.’s conduct also constituted harassment. There is no doubt that the parties were having marital difficulties, which included disputes over money, and that M.N. desired to control E.B. through her access to money. Both parties apparently used some amount of abusive language, although M.N.’s rose to the level of harassment, as found by the trial judge. What is not clear from the judge’s opinion is (1) whether the problems could have been resolved through an order in the matrimonial action giving E.B. exclusive possession of the marital residence and temporary custody of the parties’ son with a parenting time schedule, as well as provisions for support pendente lite or (2) whether an FRO was necessary to protect E.B. “from . . . immediate danger or to prevent further abuse.” The appellate panel remands to the trial judge for further consideration of whether an FRO is required and an articulation of his reasons.

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Mediation Agreements must be in writing to be binding

Posted on August 30, 2013 by Sandy Durst

Although not a family law case, the decision summarized below has significant implications for many people going through a divorce. Mediation has increase in popularity and can be effective in the right situation. This case illustrates the need to reduce any mediated settlement agreement to writing for it to be binding.

 Mediation Agreements Must Be in Writing To Be Enforceable

Mediation agreements will not be enforced unless the terms are put in writing and signed by the parties before the mediation comes to a close, the state Supreme Court says. Where the terms are too complex to be drafted that same day, the mediation should be continued for “a brief but reasonable period of time to allow for the signing of the settlement.” Mediation should help resolve disputes expeditiously, “not spawn more litigation,” the court held on Thursday in Willingboro Mall LTD v. 240/242 Franklin Ave LLC.

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The Role of Special Needs Trusts in Divorce cases

Posted on August 29, 2013 by Sandy Durst

It is well settled that in a divorce, both parents have an obligation to support a child until he or she becomes emancipated.  The case summarized below the NJ Supreme Court was presented with a fact pattern that included an adult child who might never be emancipated do to autism and the appropriate method of providing financial support for that child.  The Court approved the use of a special needs trust in lieu of traditional child support payments if it could be shown that the establishment of the special needs trust was in the child’s best interests.  When divorce law and special needs law intersect it is imperative that you retain counsel experienced in both fields.  The Durst Firm has worked with families who have special needs children and has a network of attorneys who specialize in special needs law with whom we engage when necessary.

Special-Needs Trusts in Lieu of Child Support Win Court Favor
In its first opportunity to consider the role of trusts for the benefit of adult, unemancipated, disabled children of divorce, the New Jersey Supreme Court said judges should not reject such arrangements out of hand if created for the children’s best interests. Though affirming two lower courts that held a proposed special-needs trust — for a 25-year-old autistic son living in a group home — lacked sufficient detail on how it would be in his best interests, the justices, in J.B. v. W.B., allowed another chance to prove it and enunciated guidelines.

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