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  • 1.  Upon whom is the burden when purported agreement exists?

    Posted 06-06-2016 12:20 PM
    Party A asserts that a binding agreement exists, reached between the parties without participation of counsel, resolving a divorce and all issues (alimony, custody CS, etc)

    Party B asserts it's unconscionable and unenforcable for a variety of reasons (e.g., $800 per month alimony for 2 years on 27 year marriage with Party A earning $100K and Party B a never employed stay-at-home parent [who loses residential custody under agreement], 75/25% distribution of assets in Party A's favor, no CSG, etc).

    Both parties were represented, but there was no communication between parties and counsel as to terms. As soon as Party B's attorney was made aware of "agreement", he moved to vacate it and have it declared null / void / unconscionable. Party B says it was reached without any understand of rights / obligations under the law.


    Court orders a plenary hearing as to circumstances surrounding the "agreement" and whether it's unconscionable.

    At the hearing, who is the burden on? Wife to show an enforceable agreement exists, or Husband seeking to affirm there isn't? Anyone know a case on this?


    Thanks,


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    - Dave

    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
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    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222

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  • 2.  RE: Upon whom is the burden when purported agreement exists?

    Posted 06-06-2016 07:32 PM

    As to the existence of an agreement, that's a straight Harrington vs. Harrington issue, and the party who proffers the existence of an agreement bears the burden of proof, if memory serves, by clear and convincing evidence.

    Hanan

     


    hanan.gif

    Hanan M. Isaacs, Esq.

     

    t 609.683.7400   f 609.921.8982

    e [email protected]   w www.hananisaacs.com

    4499 Route 27, Kingston NJ

     

    Party A asserts that a binding agreement exists, reached between the parties without participation of counsel, resolving a divorce and all issues ... -posted to the "Family Law Section" community

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    Upon whom is the burden when purported agreement exists?

    Image removed by sender. David Perry Davis, Esq

    Jun 6, 2016 12:20 PM

    David Perry Davis, Esq

    Party A asserts that a binding agreement exists, reached between the parties without participation of counsel, resolving a divorce and all issues (alimony, custody CS, etc)

    Party B asserts it's unconscionable and unenforcable for a variety of reasons (e.g., $800 per month alimony for 2 years on 27 year marriage with Party A earning $100K and Party B a never employed stay-at-home parent [who loses residential custody under agreement], 75/25% distribution of assets in Party A's favor, no CSG, etc).

    Both parties were represented, but there was no communication between parties and counsel as to terms. As soon as Party B's attorney was made aware of "agreement", he moved to vacate it and have it declared null / void / unconscionable. Party B says it was reached without any understand of rights / obligations under the law.


    Court orders a plenary hearing as to circumstances surrounding the "agreement" and whether it's unconscionable.

    At the hearing, who is the burden on? Wife to show an enforceable agreement exists, or Husband seeking to affirm there isn't? Anyone know a case on this?


    Thanks,



    Please confirm that you received this email and referenced attachments (if any).

    - Dave

    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
    ----------------------------------------------------
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222

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