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What is the Role of a Guardian ad Litem in a Divorce?

Oct 4, 2023 | Written by: Diana N. Fredericks, Esq. |

We (family law attorneys) often discuss the role of a guardian ad litem (hereinafter referred to as GAL), as an appointee for a child(ren) in a custody dispute when the court makes a finding that the parents are unable to act/agree in the child’s best interests.  However, what happens when an adult, such as a party in a divorce matter, may not have the mental ability to engage in the divorce process?  This blog seeks to explore the latter.

New Jersey Court Rule 5:8B addresses the appointment of a GAL.  Court Rule 4:86 addresses the appointment of a guardian of an incapacitated person or the appointment of a conservator

Rebecca and Edward[1] were married for twenty-two years at the time of their divorce.  The parties had a contract for $1m to sell the former marital residence, but Rebecca refused to cooperate in the sale and the trial court was concerned about her ability to make decisions.  The trial court therefore appointed a GAL to explore whether Rebecca had the mental ability to engage in the litigation. 

At some point, the trial court granted the GAL a power of attorney to sign the closing documents to sell the marital residence, to avoid the loss of sale and preserve the equity.  Again, the trial court ordered Rebecca to have a medical evaluation and report.

In the meantime, the parties appeared to have settled their matter outside of court and consented to arbitrate.

Thereafter, the GAL obtained a report from a psychiatrist who found that Rebecca did not suffer from mental illness or psychosis, but did have personality issues and a passivity that resulted in her need for the GAL to handle her divorce.  As a result, the trial court did just that, and the arbitration was stayed pending the guardianship. 

The GAL thereafter issued a report detailing Rebecca’s dissatisfaction with his services, as well as the fact that she was inconsistent and uncooperative.  The court ordered a second evaluation but Rebecca refused. The GAL reported that Rebecca “lacked the capacity to handle her legal matters….and needs a GAL, not a guardian of her person, in her divorce matter.”  Eventually a second doctor issued a report and Rebecca sought an alcohol rehabilitation program.  The divorce was stayed and another attorney was appointed for Rebecca for her divorce.  The GAL was also ordered to continue to serve.

Some five months later, the parties appeared with a handwritten agreement from mediation, which was signed by the GAL and Rebecca’s attorney, but not Rebecca.  At the uncontested hearing (to place the divorce on the record), Rebecca indicated that she did not agree to the settlement, she felt it was unfair, and she felt that she should have gotten a better deal.  Ultimately, the judge found that Rebecca admitted (previously) her satisfaction with the GAL and consented and requested that the GAL continue to assist her.  The judge entered the divorce.  Rebecca appealed.

Rebecca, on appeal, claimed the trial judge erred when he concluded that the GAL had the authority to make decisions for her.  The Appellate Division disagreed and upheld the trial court decision.

The Appellate Division, in this unpublished opinion, held:

Contrary to the arguments raised on appeal, the dispute here was no longer about plaintiff's competency because plaintiff removed this issue from consideration by dispensing with the guardianship hearing. Rather, the issue was whether the GAL, as designated by plaintiff and her attorney, had authority to settle the case on her behalf. The credible evidence in the record shows plaintiff exhibited oppositional behavior throughout the proceedings; a fact plaintiff readily concedes on appeal. These circumstances convince us it was not unreasonable to have an intermediary—in this case two attorneys—negotiate and facilitate the divorce. Indeed, a settlement achieved by a party through their representative is just as valid as one directly assented to by the party themselves. See Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div. 1995) (citing Davidson v. Davidson, 194 N.J. Super. 547, 549-50 (Ch. Div. 1984)).  The record shows the settlement process and the agreement contained none of the badges of unconscionability. The trial judge appropriately concluded the GAL and plaintiff's attorney had authority to settle her case and an enforceable settlement agreement was achieved. This decision was neither a mistaken understanding of the facts nor a misapplication of law.

This is an important decision, in that it details the process undertook over the four years that the divorce was litigated.  This decision also illustrates the steps taken to ensure that the result would be preserved.

If you or your spouse/partner are experiencing mental health or substance abuse issues during the pendency and negotiation of a divorce, it is critical to appreciate these nuances and to ensure all parties are protected during the dissolution proceedings relating to the marriage, as the consequences can be irreversible. 

[1] These are fictitious names.

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 from 2015 through 2021, to the NJ Super Lawyers list in 2023, 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.