K.D.E. v. J.E.: A Lesson in How Vague Language in an MSA Can Cost You Money

On October 12, 2018, the Appellate Division handed down an unpublished decision in K.D.E. v. J.E., a post-judgment matrimonial matter in Monmouth County. 

The parties married in 1988, had two children, and divorced in June 2009.  The parties negotiated a Marital Settlement Agreement (MSA) which was incorporated into their Judgment of Divorce.  At the time of the divorce, both parties resided in the marital residence.  The MSA allowed for Plaintiff and the children to remain in the marital residence until it sold.  It also allowed Defendant to remain in the home until she found alternate housing approved by her GAL. 

Defendant moved out of the marital residence approximately one month after the parties signed the MSA.  Plaintiff and the children ended up living in the marital residence for six years thereafter.  Plaintiff later claimed that he tried to sell the home but that Defendant refused to cooperate; however, Plaintiff did not file a motion in those six years.  Finally, the parties agreed to list the home for sale in 2015 and the house sold on November 30, 2015.   

The parties were unable to agree on how the sale proceeds should be distributed, so Plaintiff filed a motion seeking certain credits, including a credit for the mortgage principal he had paid down in the six years following the divorce.  Defendant opposed Plaintiff’s motion and pointed out that Plaintiff received the benefit of the mortgage deduction on his taxes as well as the benefit of not having to spend more money to buy/rent a new residence.  The trial court did not hold a plenary hearing on the matter, but instead, issued a written decision based upon the conflicting certifications filed by the parties.  The trial court granted Plaintiff’s request and commented that the parties did not anticipate the lengthy delay in the sale of the home and that Defendant was the sole cause of the delay. The decision did not address Defendant’s arguments that Plaintiff reaped tax benefits and saved money by not moving.  Defendant appealed. 

The Appellate Division lamented about the fact that there was no language in the MSA stating that the Plaintiff was supposed to receive credit for reducing the mortgage while remaining in the home, and that the language was ambiguous at best.  The Appellate Division ultimately reversed the trial court’s decision and remanded the case for a plenary hearing to be held as to the issues concerning the proper interpretation of the MSA.  Further the Appellate Division commented that when courts are determining the meaning of matrimonial agreements, they must “discern and implement the common intention of the parties.” Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) but not use extrinsic evidence to rewrite the MSA.  (citing Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 268-70 (2006)).  Ultimately, the Appellate Division reversed and remanded the case for the trial court to hold a plenary hearing to parse out the parties’ conflicting stories and their intentions with respect to their MSA. 

Agreeing to Get Back Together

Imagine that it’s been a rough few months (or longer!) for you and your spouse.  You’ve stopped sharing the marital bedroom.  One of you filed a Complaint for Divorce.  The two of you begin discussing issues such as alimony, as well as dividing assets and debts.  Now imagine a few more months have passed, and you and your spouse have talked things through and decided that both of you wish to continue in the marriage.  What now?  Perhaps you want to set some boundaries with respect to alimony and dividing assets and debts while you and your spouse start with a proverbial clean slate. 

A Reconciliation Agreement is an excellent way for couples who have fought back from the brink of divorce to lay out all their economic plans in the event that they get divorced in the future.  Although Courts have NOT enforced “mid-marriage agreements” (agreements to separate at a point certain, or the prepare for imminent divorce); Courts have differentiated reconciliation agreements and found them to be enforceable because they are in accord with public policy of preserving marriages. 

The cornerstone New Jersey case in this regard is Pacelli v. Pacelli 319 N.J.Super. 185 (App. Div. 1999).  In Pacelli, there was no divorce action pending and no warning prior to the husband informing the wife that he would immediately divorce her unless she agreed to certain economic terms and conditions relative to a future divorce.  Both parties retained attorneys.  The husband’s attorney sent the wife’s attorney an agreement which he said was non-negotiable.  The wife’s attorney advised her NOT to sign the agreement, and that she would be entitled to a much greater amount of alimony and share of the marital assets than what was contained in the agreement.  Against her attorney’s advice, the wife signed the agreement anyway, and vehemently opined that she wanted to preserve her marriage and that she did not want her children to grow up in a broken family.   

Eight years later, the wife filed for divorce.  The husband attempted to enforce the agreement, but the trial court refused.  In affirming the trial court’s decision, the Appellate Division remarked how the marriage had not lost all of its vitality when the agreement was executed, and it also emphasized its disdain at the “inherently coercive” nature of the “ultimatum” that the husband foisted upon the wife. 

The Pacelli decision outlined seven considerations in evaluating whether a Reconciliation Agreement is enforceable: 

  1. If the promise to resume marital relations was made when the marital rift was substantial. 
  1. If the agreement was oral and enforcement is sought of a promise to convey real estate, there must also be compliance with the statute of frauds. 
  1. The court may have to resolve disputes over the terms of the agreement. 
  1. The court must consider whether the circumstances under which the agreement was entered into were fair to the party charged. 
  1. The terms of the agreement must have been conscionable when the agreement was made. 
  1. The party seeking enforcement must have acted in good faith. 
  1. Changed circumstances must not have rendered literal enforcement inequitable. 

(citing Nicholson v. Nicholson, 199 N.J. Super. 525, 532 (App. Div. 1985)) 

The list of factors and the finer points of alimony and equitable distribution can be daunting; however, the attorneys at Argentino Family Law & Child Advocacy can (and have) handled Reconciliation Agreements (as well as countless other family law issues).  Give us a call so that we can schedule a case assessment and give you more details about how a Reconciliation Agreement may work for you. 

C.C.E. v. C.R.E.: Beeps, Signs, and an “Unschooled Litigant” in a Domestic Violence Trial

On September 20, 2018, the Appellate Division handed down an unpublished opinion on C.C.E v. C.R.E., a case about a Final Restraining Order (FRO) granted under the Prevention of Domestic Violence Act.

The parties had been married for about 19 years when the wife a non-dissolution docket (often called the FD docket).  The wife’s application resulted in an order granting her exclusive possession of the parties’ marital residence, and, among other things, directing that the husband have no contact with the wife “whether oral, written, direct or indirect, via text, email or social media, except for text or email for the welfare of the children only.”

Thereafter, the husband regularly drove past the marital residence and beeped or waved.  In order to gather proof of the husband’s violation of the civil restraints, the wife put up signs on her mailbox referring to the husband as a stalker and mentioning his girlfriend by name.  The husband texted the wife about the signs, thereby proving that he had driven by the former marital residence and read them.

The husband filed a domestic violence complaint against the wife alleging that her posted signs constituted harassment.  The wife filed her own domestic violence complaint based upon harassment and stalking.  At the time of the hearing, the husband proceeded as a self-represented litigant, while the wife was represented by an attorney.  The trial court judge often reframed the questions that the husband was asking the wife during cross-examination (which the husband later used as part of the basis of his appeal).

The trial court ultimately granted the wife’s request for a final restraining order and denied the husband’s request.  The trial court found that the wife was credible and that the husband was not.  The trial court also concluded that the husband’s text messages were meant to cause annoyance or alarm to the wife, which is within the Domestic Violence Act’s statutory definition of harassment, and that the harassment rose above the “ordinary domestic contretemps” that are defined by domestic violence case law, which are often present in domestic violence litigation and do not, by themselves, justify the Court issuing an FRO.

On appeal, the husband argued several points, including that the trial court abused its discretion and violated his constitutional rights by denying him the right to directly cross-examine the wife.  The Court commented that when at least one party is unrepresented in an FRO hearing, a judge is not only permitted to do much of the examination; a judge is expected to do it.  The court reasoned that a judge needs to do much of the examination “in order to seek the truth that might not easily arrive when an unschooled litigant attempts to examine a witness.”  The Appellate Court further commented that refocusing the testimony the husband sought to elicit from the wife did not prejudice the husband’s prosecution of his case nor did they hamper his defense.  The Appellate Division affirmed all aspects of the trial court’s orders, except for the award of counsel fees, which was vacated and remanded for further consideration.

¿Cuáles son los diferentes tipos de custodia?

Cuando piensas en la palabra “custodia”, muchas personas asumen que simplemente significa dónde vive un niño. La ley de Nueva Jersey establece diferentes tipos de custodia, dependiendo de la situación de la familia.

La custodia legal se refiere al derecho de cada padre a tomar decisiones importantes sobre la vida del niño, como las relacionadas con la atención médica, la educación y la educación religiosa. En muchos casos, uno de los padres tiene la custodia física primaria de un niño, o sirve como el padre de la residencia principal (PPR). En otros casos, los padres pueden haber compartido la custodia física, lo que significa que un niño pasa más o menos la misma cantidad de tiempo con cada padre. 

 No es raro que uno de los padres sea el custodio físico o el padre de un menor con residencia, mientras que el otro padre tiene derecho a pasar tiempo con el menor. Mientras que el arreglo tradicional solía ser para el padre sin custodia o no residente para ejercer visitas con el niño en fines de semana alternos y un día durante la semana, un padre sin custodia puede desear pasar más tiempo con el niño y esta es una resolución que es cada vez más común . En ese caso, las partes podrían tener lo que está más cerca de un acuerdo de custodia compartida. La custodia compartida, sin embargo, no siempre significa que el tiempo del niño se divide perfectamente entre los dos padres. Simplemente significa que los padres tienen un tiempo de crianza más cercano a un horario igualmente compartido y ambos participan activamente en las actividades regulares de un niño. 

 Los padres comúnmente comparten la custodia legal conjunta de su hijo después de la disolución de un matrimonio o relación. Beck v. Beck, 86 N.J. 480 (1981). Esto significa que los padres deben cooperar para tomar decisiones importantes en conjunto sobre su hijo. Si bien la custodia legal conjunta es una gran manera para que los padres sean padres de sus hijos de una manera positiva, también puede ser muy gravoso cuando los padres simplemente no se llevan bien. Si los padres no pueden ponerse de acuerdo sobre las decisiones más básicas sobre el niño, como a qué escuela asistirá el niño, entonces es probable que aumenten las tensiones, aumenten las disputas legales y finalmente el niño sufrirá las consecuencias. En caso de que las partes no puedan llegar a un acuerdo sobre la decisión en cuestión, las partes pueden tener que involucrar al Tribunal en la toma de decisiones. 

Los casos de custodia a menudo son complicados, largos, emocionales y estresantes. No importa cuán complejos sean los problemas en su caso, estamos aquí para ayudarlo. Los abogados de Argentino Family Law & Child Advocacy, LLC, han manejado casos que involucran todos los aspectos del divorcio, la custodia de los hijos y el derecho de familia, así como casos que involucran otros asuntos relacionados con las familias y los niños. Comuníquese con la familia experimentada de Nueva Jersey y con los abogados de menores en nuestra oficina si tiene alguna pregunta legal sobre los niños y su familia. 

What Are the Different Types of Custody? 

When you think of the word “custody,” many individuals assume that it simply means where a child lives. New Jersey law provides for different types of custody, depending on the family’s situation. Legal custody refers to the right of each parent to make important decisions about the child’s life, such as those involving medical care, education, and religious upbringing. In many cases, one parent has primary physical custody of a child, or serves as the parent of primary residence (PPR). In other cases, parents may have shared physical custody, which means that a child spends roughly the same amount of time with each parent. 

It is not uncommon for one parent to be the physical custodian or residential parent of a child, with the other parent being entitled to parenting time with the child. While the traditional arrangement used to be for the noncustodial or nonresidential parent to exercise visitation with the child on alternate weekends and one day during the week, a noncustodial parent may wish to spend more time with the child and this is a resolution which is increasingly common. In that case, the parties might have what is closer to shared custody arrangement. Shared custody, however, does not always mean that the child’s time is divided perfectly evenly between the two parents. It just means that the parents have parenting time that is closer to an equally shared schedule and both actively participate in a child’s regular activities. 

Parents commonly share joint legal custody of their child following the dissolution of a marriage or relationship. Beck v. Beck, 86 N.J. 480 (1981). This means that the parents must cooperate in order to jointly make important decisions about their child. While joint legal custody is a great way for parents to co-parent their child in a positive manner, it also can be very burdensome when parents simply don’t get along. If the parents cannot agree on the most basic of decisions about the child, such as what school the child will attend, then it is likely that tensions will rise, legal disputes will increase, and the child ultimately will suffer the consequences. In the event that the parties cannot agree on the decision at issue, the parties may have to involve the Court in their decision making. 

Custody cases are often complicated, lengthy, emotional, and stressful. No matter how complex the issues in your case may be, we are here to help. The attorneys of Argentino Family Law & Child Advocacy, LLC, have handled cases involving all aspects of divorce, child custody, and family law, as well as cases involving other matters related to families and children. Please contact the experienced New Jersey family and child lawyers at our office if you have any legal questions about children and your family.