NJSBA Family Law Section

Potential client "PC" divorced several years ago by way of a default judgment.  Only a divorce granted no ED granted or waived.  Judge specifically made no findings and said he was only entering a divorce.  Anything precluding PC from now seeking equitable distribution? Specifically seeking ED of a retirement account/pension?  TIA

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Jennifer Armstrong Esq.
Brick NJ
(732)281-6000
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Jen -

This is a question I've pondered when having default judgments entered.  If the complaint addressed equitable distribution (if it stated that it was seeking a judgment wherein no ED was awarded), then the question is whether plaintiff's counsel was required to file a Notice of ED / Notice of Proposed Judgment affirming that other party had no right to ED.  Under the Rule, the notice is required when ED is sought - so is extinguishing someone's rights within the Rule?  Is one "seeking ED" when seeking a judgment holding that the other party has no right to share in maritally acquired assets?

Also, with a retirement account, client may have independent rights under ERISA that would survive a state court judgment if the interest wasn't specifically addressed.

Procedurally, would you file a motion to reopen the judgment if the judgment was silent on the issue, or some other / new type of complaint if all the JOD did was dissolve the marriage and was silent on this?

There's no cases on this that I'm aware of (beyond a cf. cite to Judge Jones' case last year affirming that the trial court still has to ensure fairness even in a default situation). Please share your results (or legal research if you come across a case) if you move forward on this.

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David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
http://www.FamilyLawNJ.pro
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This recent unreported decision may be instructive.

Defendant argued that the judgment of divorce entered by default should have been vacated because, among other things, the court lacked subject matter jurisdiction. The judgment was then reversed "as to all issues except the granting of the divorce" and remanded. Following plaintiff's death, the trial court dismissed the case. Had the issues triggered by plaintiff's death been fully considered when the orders in question were entered, the judge would have recognized that plaintiff's death did not necessarily require an end of the proceedings. The appellate panel found the judge's decision to terminate defendant's attack on the judgment of divorce somewhat incongruous because, by upholding the dissolution of the marriage, the judge preserved defendant's right to an equitable distribution of marital property and his own authority to revisit, amend, or vacate the prior default judgment. Here, because the marriage had been dissolved by court order, albeit without prejudice, rather than a spouse's death, the predicate for equitable distribution was in place at the time of plaintiff's death, and remains so. The judge erred in concluding otherwise. The appellate panel reversed and remanded.

20-2-5245 Russo v. Arvay, App. Div. (per curiam) (9 pp.)

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Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
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