CARLSEN v. CARLSEN, 72 N.J. 363 (1977) and SMITH v. SMITH, 72 N.J. 350 (1977) were companion cases, decided the same day on January 27, 1977.
Before we get into that discussion, the reason I asked if the lawyer is still around is what would appear to be an obvious conflict, in the event certain enumerated conditions are not met.
RPC 1.7. Conflict of Interest: General Rule
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(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
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(1) the representation of one client will be directly adverse to another client; or
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(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.
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(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
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(1) each affected client gives informed consent, confirmed in writing, after full disclosure and consultation, provided, however, that a public entity cannot consent to any such representation. When the lawyer represents multiple clients in a single matter, the consultation shall include an explanation of the common representation and the advantages and risks involved;
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(2) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
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(3) the representation is not prohibited by law; and
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(4) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
That being said, it appears that what you are attempting to do, at its essence, is to avoid successful enforcement. Apart from the equitable defense of latches (which may also be invoked or argued, based upon your assertion that your client is years behind in his payments and is now impecunious), IMO, you do not have to attempt to reform the agreement
per se. It must, however, be fair in order to enforce, which it certainly does not appear to be.
The reason I asked about how long ago the Agreement was entered into, was to do a R. 4:50-1 analysis. You replied that the Agreement was signed in 2011 and that he never paid the alimony (once again, latches, etc.) A Rule 4:50-1 motion in your case would be out of time.RULE 4:50. Relief From Judgment Or Order
4:50-1. Grounds of Motion
On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
Note: Source-R.R. 4:62-2 (first sentence); amended July 15, 1982 to be effective September 13, 1982; amended July 13, 1994 to be effective September 1, 1994.
4:50-2. Time of Motion
The motion shall be made within a reasonable time, and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken.
So, we are back to the heart of the matter, which is really enforcement. While case law simply abounds in this area, I thought it might be fun to just take two very old cases to make the point, hence, back to Smith and Carlsen.
In Carlsen, as in Smith, the Court was called upon to consider the effect of a pre-1971 separation agreement on a claim for equitable distribution incident to a divorce action initiated pursuant to the "no-fault" amendments to the divorce law, N.J.S.A. 2A:34-1 et seq. The agreement in Carlsen differs somewhat from that in Smith. It cannot be described as dealing only with maintenance and support, since, superficially at least, it had some of the characteristics of a property settlement. Furthermore, it was not a purely private contract between the parties, but was incorporated in a judgment for separate maintenance.
While I certainly recommend that you conduct independent legal research to enjoy the assortment of cases on point, the Carlsen Court wraps up with the following points, principles or tenets:
As a contract between husband and wife, the agreement is unenforceable at law. N.J.S.A. 37:2-5; Bendler v. Bendler, <cites>3 N.J. 161</cites>, 168-69 (1949); Wolff v. Wolff, 134 N.J. Eq. 8, 16 (Ch. 1943). Such a contract may, however, be enforced in equity if found to be fair and equitable.
Contracts between husband and wife are void at law and are recognized as valid in equity only if they are just and fair. [Wolff v. Wolff, supra, at 16]
Separation agreements between spouses have long been considered to fall within the category of contracts enforceable <page vol="72" reporter="N.J." no="371"> in equity, but only if found to be just. Berkowitz v. Berkowitz, <cites>55 N.J. 564</cites>, 569 (1970); Schlemm v. Schlemm, <cites>31 N.J. 557</cites>, 581-82 (1960).
Food for thought.</page>
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Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
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Original Message:
Sent: 07-07-2014 11:57
From: Francis Grather
Subject: voiding unconscionable agreement
I believe Smith and Carslsen v. do are the cases both in 72 NJ
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Francis Grather Esq.
Morristown NJ
(973)292-9222
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