NJSBA Family Law Section

Hi All,

Does anyone have any case law or examples of a situation in which items subject to equitable distribution were not included in the original MSA/PSA, but now need to be addressed?

For example, if the agreement states that a certain item needs to be sold after the divorce, but does not say whether the profits are meant to be split 50/50, whether they are subject to certain credits/offsets, etc.

Looking for case law that suggests the above would be inferred, or an obvious choice.

Thank you!

------------------------------
Samantha K. Boos, Esq.
Montville NJ
(973)768-9726
[email protected]
------------------------------

Any possibility there was an agreement that somehow, through human error, just didn't make it into the doc?

Does your client have any recollection of what the parties agreed upon verbally? If the parties agreed to something which was inadvertently left out and the other party agrees that was what was agreed, you could do an amendment.

If your client has a recollection of what was agreed upon but the opposing party has a different recollection, you could file a motion to amend and enforce with supporting affidavit. The court can hear direct and cross of both parties and make a credibility call.

Of course, the other people who may have relevant recollections or notes will be the original attorney's for the parties who can't submit affidavits or testify live unless respective clients waive privilege.

If your client has no recollection of an agreement, then time to research. Though I would also look at rest of settlement for possible equity based arguments if case law doesn't favor your client.

Anne Cralle, Esq.



Sent from my iPad


Original Message------

Hi All,

Does anyone have any case law or examples of a situation in which items subject to equitable distribution were not included in the original MSA/PSA, but now need to be addressed?

For example, if the agreement states that a certain item needs to be sold after the divorce, but does not say whether the profits are meant to be split 50/50, whether they are subject to certain credits/offsets, etc.

Looking for case law that suggests the above would be inferred, or an obvious choice.

Thank you!

------------------------------
Samantha K. Boos, Esq.
Montville NJ
(973)768-9726
[email protected]
------------------------------

Original Message------

Any possibility there was an agreement that somehow, through human error, just didn't make it into the doc?

Does your client have any recollection of what the parties agreed upon verbally? If the parties agreed to something which was inadvertently left out and the other party agrees that was what was agreed, you could do an amendment.

If your client has a recollection of what was agreed upon but the opposing party has a different recollection, you could file a motion to amend and enforce with supporting affidavit. The court can hear direct and cross of both parties and make a credibility call.

Of course, the other people who may have relevant recollections or notes will be the original attorney's for the parties who can't submit affidavits or testify live unless respective clients waive privilege.

If your client has no recollection of an agreement, then time to research. Though I would also look at rest of settlement for possible equity based arguments if case law doesn't favor your client.

Anne Cralle, Esq.



Sent from my iPad

Original Message------

Hipsley v. Hipsley, 161 N.J. Super. 119, 122 (Ch. Div. 1978) might offer some guidance although not directly on point.  In Hipsley the Court found that a party seeking to rely on a contract to bar the other party's right to equitable distribution of a substantial marital asset not specifically addressed/identified within the contract, "has the burden of specifically providing in the contract that the parties had contemplated that asset, and proving to the court that the contract establishes a fair method of disposition of the asset." 

 

____________________________

Stephanie Palo, Esq.

146 Route 34, Suite 325

Holmdel, NJ 07733

P: (732) 837-4544

F: (732) 837-2328

C: (732) 492-3124

[email protected]