Recently we found this great article on parenting schedules for people that are co-parenting but not living together. It covers a many different considerations and offers advice on how to create a schedule that can work for the whole family.
Disclaimer: This is not legal advice from our team, but a great piece written by Ryan Howard from SmartParentAdvice.com
On October 12, 2018, the Appellate Division handed down an unpublished decision in K.D.E. v. J.E., a post-judgment matrimonial matter in Monmouth County.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.
On October 2, 2018, the Appellate Division handed down an unpublished decision in Rooney Sahai v. Susan Sahai, a post-judgment matrimonial matter on appeal from Bergen County.
The parties divorced in 2012 after 26 years of marriage. Their Property Settlement Agreement (PSA) provided for no parenting time between Susan and the parties’ severely disabled adult daughter, even though both parties cared for the child from the time of her birth through the entry of their divorce. In July 2014, Susan filed a motion to vacate the PSA on the grounds that Rooney coerced her into signing it. The court scheduled a plenary hearing shortly thereafter.
Over the 4 ½ years that followed Susan’s motion; Rooney engaged in what the Appellate Division labeled as “obstructionist litigation.” Rooney failed to comply with 3 separate court orders (including a consent order), entered over the course of 9 months, for Susan to have visitation with the parties’ daughter. Rooney initiated a criminal complaint against Susan with the Bergen County Prosecutor’s office (which was administratively dismissed). He also filed civil suits against Susan’s attorney in Superior Court and Federal Court (both of which were also dismissed). During all of this chaos, the trial court imposed $20,000 in sanctions against Rooney for his non-compliance with court orders as well as ordering him to pay over $10,000 in attorney’s fees.
Rooney filed 2 appeals relative to the sanctions and attorney’s fees. Prior to the Appellate Division reviewing the matter, Susan’s attorney informed the court that the plenary hearing was still pending, as the trial court was now awaiting the Appellate Division’s decision.
On appeal, the court noted that Rooney had failed to comply with the financial discovery that was required of him at the trial level. For that reason, he could not now come before the Court and claim an inability to pay. The Appellate Court also supported the trial court’s statements that it did not find Rooney’s testimony about his financial circumstances to be credible, and that it was able to make a “reasonable inference” that he was either attempting to hide money or attempting to mislead the court. The Appellate Court ultimately affirmed the trial court’s award of counsel fees and imposition of sanctions.
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:
If the promise to resume marital relations was made when the marital rift was substantial.
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.
The court may have to resolve disputes over the terms of the agreement.
The court must consider whether the circumstances under which the agreement was entered into were fair to the party charged.
The terms of the agreement must have been conscionable when the agreement was made.
The party seeking enforcement must have acted in good faith.
Changed circumstances must not have rendered literal enforcement inequitable.
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.