I would have done the same thing you did, Clara. You did the right thing, moreover, by writing her. You have just earned the trust of a new client – albeit, down the road – because that is where this situation is going. Bluff or no bluff, he is posturing for the divorce that is inevitable, I bet.
I didn't jump in and give my two cents to your prior email until now but was going to. I was going to say, it takes two to tango. If he doesn't want to be married, so be it. There's nothing she can do about that. But to keep the marriage going – for probably what is a little period of time anyway -- by signing an obviously coercive and unfair agreement is not a good program. That is not the way for her to go. It is just putting off until a later time the inevitable, and you certainly don't want to be there with a bad agreement in place. Like you, I would have had nothing to do with that. Being involved in such an agreement is not a fee you need to earn!
I would have, further, told her to do her own posturing, if you will, with respect to document accumulation in the interim. It will make her life, and yours, so much easier later on. Photocopies are cheap. You probably already told her that.
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Original Message------
Thanks, everyone.
I advised client not to sign the agreement and gave her a thorough letter confirming everything we discussed. Actually, the agreement has not been prepared, but husband gave wife a memo by e-mail of the features he wanted in the agreement, including:
1. 50-50 split of assets, although he claimed the marital joint account contained cash "gifts" from other people he claimed were exempt (even though commingled. . .);
2. Either waiver of alimony or very limited alimony on the ground that she had substantial pre-marital assets. (A non-sequitur in my opinion). Also, agreement to 50-50 distribution of assets would be affected if she asked for alimony. (It is a 13 year marriage, so there is going to be some entitlement to alimony, even under the new statute, and given the disparity in income, I don't think the amount would be insignificant.
3. Segregation of future assets (including income) and payment of marital expenses on a 50-50 basis. Did I mention he makes $210K annually and she makes $60K? And that he might be willing to contribute more than half if he feels he is "happily married." (a completely subjective standard).
This proposed agreement is not a reconciliation agreement. Parties had not been separated, there was no marital infidelity or significant marital "fault" on my client's part. In fact, she had been attending therapy for the past year to actively work on issues he identified, such as "you are curt and dismissive of me. . ." He also had been to therapy to work on some issues she identified. She felt they had made real progress and then he dropped this bombshell proposal, which was positioned as sign this, if you want to stay married to me. Reading Pacelli, this agreement is inherently coercive. Do what I say or get ready for a divorce (which she didn't want, she loves him) and in light of the inbalance in incomes, she could not maintain the same marital standard of living. Marriage had not genuinely deteriorated, husband's motivation was financial, and agreement was not fair.
I told her to call his bluff and if he files for divorce, in my opinion what she would get in settlement or at trial would be fairer than what he is offering her.
Clara
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Original Message:
Sent: 01-14-2015 10:20
From: David Perry Davis
Subject: Family Law : Family Law : "Post-Nuptial" or Reconcilation Agreements
Clara -
Been there, done that, got the t-shirt. Very frustrating and not uncommon scenario. Had it more than once, but most extreme -- Client was completely dependent spouse, H earned $125+ and controlled all the marital assets. A p.l. order was entered requiring him to advance a retainer and pay $3500 / month in support. H files for reconsideration, saying he couldn't possibly do either, motion denied and counsel fee award entered. H then appears (literally) with roses and apologies for W. Transparent to me, but easier for us to see what's up than someone who has 25 years and three kids invested. Sure enough, he appears with a consent order and a "reconciliation agreement" that can only be politely called financial sodomy. I did everything I could to get her not to sign it, delayed, had her sign two giant-font CYA letters saying it was explicitly against my advice, even made her get on a phone conference with family members. She signs it. Six months later, H reveals he'd never broken up with his new GF, never loved W, just wanted out from under on the agreement. He files new complaint and wants to use this "Agreement" as basis for it. Also, coincidentally, he left his prior job and was working for a friend "earning $40,000", all the assets were gone "through a series of bad investments in a friend's business venture", etc, so no funds beyond a limited credit card line for her to retain counsel. Client was borderline suicidal. Sometimes practicing Family Law is hard.
Anyway, I thoroughly briefed the issue of pre-nups, mid-marriage, and PSA's and the different standards that apply (as H's agreement purported to be a reconciliation agreement that would automatically become a PSA if the parties again filed for divorce -- that didn't fly; different legal standards). I'll shoot you a copy of the pleadings off-list.
I agree with Hanan that there is no case that says a reconciliation agreement is inherently coercive.
Gary - Recently went through this issue here; be careful. I had the same thinking you did as to the cut-off date for ED still possibly being based on the complaint date if it is later dismissed. I cited Portner from the App Div. Hanan corrected me, pointing out that the Supremes had stepped in and reversed. Black letter: Absent an explicit written agreement to the contrary, a complaint only serves as the cutoff date for ED if it results in a final judgment of divorce. What the parties do with their money after a reconciliation and complaint dismissal would NOT control: http://community.njsba.com/communities/alldiscussions/viewthread/?GroupId=1291&MID=16961
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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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