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Recent Updates in NJ Family Law

May 12, 2022 | Written by: Diana N. Fredericks, Esq. |

Recent Updates in NJ Family Law

It is important to keep abreast of the new issues and decisions that affect family law in the state of New Jersey on an almost daily basis.  The following three recent updates are noteworthy and worth further discussion.

1.  Donna Ohlson v. Theodore Wodzinski

In this unpublished opinion, the NJ Appellate Division addressed the issue of handwritten changes on a settlement agreement.  It was not uncommon, particularly in the days when we sat in the courthouse negotiating agreements on paper, for there to be handwritten changes at the eleventh hour to finalize a marital/property settlement agreement in order to proceed with a divorce.  This was commonplace.  Most of the time, each handwritten change to the agreement was initiated by the parties to confirm the change and understanding. 

This post-divorce dispute pertains to parties who were divorced in 1998, at which time they made handwritten changes to an agreement at the courthouse.  The agreement stated that the wife was to be the sole occupant of the marital home, and she was responsible for any and all costs associated with the home.  However, there was additional handwritten language stating that the parties would continue as “tenants in common[1]” until both agreed it would be sold and the equity divided or the wife would buy out the husband.

In 2019, the husband told the wife he wanted to sell the house and receive his proceeds from the sale.  The husband filed a motion to compel same.  The wife filed a cross motion asking the court to dismiss the husband’s application and/or require him to reimburse her for half of all the expenses she had incurred on the house ($394,000), as he had contributed nothing over the prior twenty-one years since their divorce.

The trial court ordered a period of discovery, an appraisal of the home, and a plenary hearing (mini trial).  The husband testified that he did not read the agreement before he signed it. 

The judge ultimately ordered that the handwritten terms were at odds with the typed terms and decided that the wife was entitled to credit for the totality of the expenses she paid. Therefore, she would be credited same against the equity in the home when considering the amount owed to the husband.

The Appellate Division agreed with the trial court judge. 

Because there was an ambiguity in the terms of the agreement, the court had to order a hearing.  Moreover, the doctrine that is applicable requires the court, when considering an ambiguous term, to adopt the meaning most favorable to the “non-drafting” party, which can be particularly relevant when one party is self-represented.  Moreover, this opinion details the necessity of clear language in drafting settlement agreements.  This is crucial.

2.  Robert Mahar v. Margaret Gig Clark

Although lengthy, this unpublished opinion is worth reading…

In this appeal, the defendant/wife claimed that the trial court erred in dismissing her claim for divorce based on extreme cruelty.  The NJ Appellate Division disagreed, finding “no such manifest denial of justice.”  The court afforded the wife the opportunity to testify and present examples of the alleged extreme cruelty, but ultimately determined the evidence was insufficient to proceed on that count of her counterclaim.

The defendant/wife then claimed that the equitable distribution ordered by the judge was “mechanical” and inequitable.  The Appellate Division disagreed, finding that the trial court properly applied, weighted, and balanced the statutory factors that set forth how marital assets (and liabilities) should be divided between the parties.  Those factors look at what is equitable, given all of the facts and circumstances of each case, and not necessarily what is equal.

The plaintiff/husband cross-appealed, first arguing that the trial court should have used the value of certain assets as of the date of complaint rather than trial or distribution.

New Jersey courts generally follow the rule that the valuation date is the date the complaint for divorce was filed. Smith v. Smith, 72 N.J. 350, 361-62 (1977); Borodinsky, 162 N.J. Super. at 447. However, there is "no iron-clad rule for determining the date of valuation of marital assets[.]" Scavone v. Scavone, 243 N.J. Super. 134, 137 (App. Div. 1990). The "use of a consistent date is preferable, such as the filing of the complaint[.]" Bednar v. Bednar, 193 N.J. Super. 330, 332 (App. Div. 1984). Because the distribution of assets "must still be equitable," an alternate valuation date may be appropriate if the use of the date of the complaint would create an injustice or contravene the policies supporting equitable distribution. See Smith, 72 N.J. at 362. Depending on the circumstances, a significant change in the value of a particular asset between the date of the complaint and the date of final judgment may warrant the use of the later date for valuation purposes. See Bednar, 193 N.J. Super. at 332 (the date of final hearing may serve as valuation date, depending on nature of asset and any compelling equitable considerations); see also Scherzer v. Scherzer, 136 N.J. Super. 397, 400 (App. Div. 1975) (a proper factor in determination of what is equitable is any significant change in valuation of marketable assets that occurs prior to final judgment).” 

The Appellate Division disagreed with the husband, finding that the trial court was within its discretion in valuing the assets as it did.

Lastly, the husband appealed the trial court decision because it failed to specify the way he was to receive his net share of equitable distribution.  The Appellate Division agreed that permitting the wife to unilaterally decide to pay the equitable distribution award to the husband was an abuse of discretion.

3.  A.A.R. v. J.R.C.

This published opinion addresses procedural due process requirements at a domestic violence (Final Restraining Order) hearing.

Because the trial judge in this case did not advise the defendant of his legal exposure or his due process right to counsel[2], the Appellate Division vacated the FRO and remanded the matter to the trial court for a new trial.

The right to seek counsel is an important due process right that affords defendants "a meaningful opportunity to defend against a complaint in domestic violence matters[.]" D.N., 429 N.J. Super. at 606. In that regard, we held that due process does not require the appointment of counsel for indigent 3 387 N.J. Super. 112 (App. Div. 2006). A-2804-20 5 defendants in a domestic violence proceeding seeking an FRO. Nevertheless, due process does require that a defendant understands that he or she has a right to retain legal counsel and receives a reasonable opportunity to retain an attorney.”

When selecting a family law attorney, it is worth considering whether the attorney keeps atop of the recent developments in the practice area, as things are ever-evolving and it is important that your attorney be familiar with these updates.

[1] A tenancy in common exists when two or more persons own an undivided interest in the whole property. There is no right of survivorship in a tenancy in common.

[2] It is important to note that the right to counsel does not mean that one will necessarily be appointed for you, but rather that you are entitled to hire counsel.  In domestic violence proceedings, there is no right to counsel based on financial considerations (in most cases) as there is in criminal matters.

Diana Fredericks, Esq.


Diana N. Fredericks, Esq., devotes her practice solely to family law matters.  She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters in 2015, 2016, 2017, 2018, 2019, 2020 and 2021, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015.  Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.

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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.