NJSBA Family Law Section

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  • 1.  What can happen when a represented party negotiates with a pro se . . .

    Posted 09-06-2016 07:53 PM

    FAMILY LAW


    20-2-1258 L.B. v. H.B., N.J. Super. App. Div. (per curiam) (15 pp.) After 10 years of marriage, the parties signed a property settlement agreement and were divorced. Defendant, the former wife, signed the PSA, which had been prepared by the attorney for plaintiff, her husband, when she was not represented by her own attorney. The PSA provided, among other things, that defendant waived alimony and equitable distribution for a lump sum payment of $250,000, and plaintiff would be the parent of primary residential custody for the parties' two children. Defendant subsequently retained an attorney and moved to vacate the PSA, which had been incorporated into the judgment of divorce. She contended that at the time she signed the PSA, and when the judgment of divorce was entered, she was suffering from, and in treatment for, drug addiction and depression. Thus, she did not understand the PSA and was acting under mistake, fraud or duress. Among other things, she asserted that she did not know that plaintiff enjoyed an average annual income of over $600,000 for the three years prior to the divorce or what assets he had and, therefore, she did not knowingly or intelligently waive her right to alimony and equitable distribution. The Family Part denied the motion without holding a hearing. The panel reversed and remanded for a plenary hearing, concluding that given the material disputed facts concerning the circumstances under which the PSA was signed, and the questionable nature of a number of the provisions of the PSA, defendant was entitled to discovery and a plenary hearing.


    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

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  • 2.  RE: What can happen when a represented party negotiates with a pro se . . .

    Posted 09-07-2016 02:37 PM

    Wow - I don't usually post a simple "thank you", but I'd missed that and it could not be more well-timed. Thanks, Hanan!


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    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


    I was just retained to reopen a 2014 divorce. Wife was represented by highly competent local counsel and was bullied into dropping her attorney. The parties attended mediation, and the mediator ended the session in less than 10 minutes because the psychological imbalance in power was so extreme he didn't feel that he could work with the parties. The Wife then waived alimony (17 year marriage, she was homemaker, he makes $120K), waived any share of his 401k ($260,000) and accepted $60,000 as equitable distribution (paid out $2500 per month) of a home with $525,000 in equity. Other parts of the agreement (residential custody of the kids going to him) were even less favorable to her. The "agreement" pushes the boundaries of the word unconscionable (/phrase "shocking to the judicial conscience") to new levels. About three weeks after putting it through, Wife broke down and was hospitalized with depression and non-specific psychotic disorder. She's been in counselling for two years and is now ready to try to reopen. She's about to hit the last e.d. payment (which H unilaterally reduced) and facing homelessness. (Ex-Husband literally encouraged her to kill herself rather than become homeless, saying "the kids would be sad but they'll get over it and it would be best for everyone"... in a text message. In writing he did this. You can't make this stuff up.)

    Anyway, I'm working on getting certifications from prior counsel and the mediator in support of a motion to vacate the Agreement.

    I'd also like to get at least a preliminary psych expert report based on: an interview / testing with her, speaking with the above folks, and reviewing her psych records. I'm hoping to get enough so that the judge can determine as a matter of law (e.g., without the time & expense of a plenary) that the agreement should be vacated.

    It's a Mercer case. I'm not getting a retainer up front as I'm confident enough that it'll be vacated (and if I'm wrong, then it's still pretty clearly "doing the right thing"). I'm hoping there's a good expert out there who would take this on - I'll include in the motion the need for an advance against equitable distribution to pay the expert and counsel. (Then, of course, the hope is to return to mediation with counsel there and cut a deal - maybe not everything she'd had gotten if a JOD was never entered, but something that's a lot closer to "fair").

    Please advise, on-list or off, if anyone knows someone who would assist.

    Thanks,


    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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