Marital Domestic Separation and Property Settlement Agreement Minor Children Parties May have Joint Property or Debts where Divorce Action Filed
Note: This summary is not intended to be an all inclusive
discussion of the law of separation agreements in New Jersey, but does
include basic and other provisions.
General Summary:
In New Jersey, the courts have a well established authority to modify property distribution, alimony, and support
orders issued in divorce cases. This authority also extends to the
review of property settlement agreements.
Where a separation agreement is executed prior to the filing of
an action for divorce it will be a bar to equitable relief or modification
only if, and to the extent that, it can qualify as a property settlement,
and can likewise be shown to have been fair and equitable. Only then can
it be said to be the substantial equivalent of an equitable distribution
of marital assets, sufficient to justify denial of such relief.
Statutes:
New Jersey Statutes
TITLE 2A ADMINISTRATION OF CIVIL AND CRIMINAL JUSTICE
Alimony, maintenance:
Pending any matrimonial action brought in this State or elsewhere,
or after judgment of divorce or maintenance, whether obtained in this State
or elsewhere, the court may make such order as to the alimony or maintenance
of the parties, and also as to the care, custody, education and maintenance
of the children, or any of them, as the circumstances of the parties and
the nature of the case shall render fit, reasonable and just, and require
reasonable security for the due observance of such orders, including, but
not limited to, the creation of trusts or other security devices, to assure
payment of reasonably foreseeable medical and educational expenses....Orders
so made may be revised and altered by the court from time to time as circumstances
may require.
In all actions where a judgment of divorce or divorce from bed
and board is entered the court may make such award or awards to the parties,
in addition to alimony and maintenance, to effectuate an equitable distribution
of the property, both real and personal, which was legally and beneficially
acquired by them or either of them during the marriage. However, all such
property, real, personal or otherwise, legally or beneficially acquired
during the marriage by either party by way of gift, devise, or intestate
succession shall not be subject to equitable distribution, except that
interspousal gifts shall be subject to equitable distribution. Section
2A:34-23.
Case Law:
In New Jersey, the equitable authority of courts to modify property
distribution, alimony, and support orders issued in divorce cases is well
established. Marital property is treated as distinctive, Carr v. Carr,
120 N.J. 336, 346-49, 576 A.2d 872 (1990), and it is held that "property
settlement agreements" entered into in anticipation of divorce reflect
the unique nature of the marital enterprise. Rothman v. Rothman,
65 N.J. 219, 229, 320 A.2d 496 (1974). Marital property settlement agreements
"involve far more than economic factors" and must serve the strong public
and statutory purpose of ensuring fairness and equity in the dissolution
of marriages. Rothman, supra, 65 N.J. at 229, 320 A.2d 496; see
Peterson v. Peterson, 85 N.J. 638, 644, 428 A.2d 1301 (1981). Even when a divorce
order incorporates agreements reached privately between the parties, such
orders can be modified "in light of all the facts" bearing on what is "equitable
and fair." Smith v. Smith, 72 N.J. 350, 360, 371 A.2d 1 (1977).
In New Jersey, "contract principles have little place in the law of domestic
relations." Lepis v. Lepis, 83 N.J. 139, 148, 416 A.2d 45
(1980).
The adoption of a property settlement into a divorce decree does
not render it immutable. Courts have continuing power to oversee divorce
agreements, Corbin v. Mathews, 129 N.J. Eq. 549, 552 19 A.2d 633
(E. & A. 1941), and the discretion to modify them on a showing of "changed
circumstances," Berkowitz v. Berkowitz, 55 N.J. 564, 569 264 A.2d
49 (1970), that render their continued enforcement unfair, unjust, and
inequitable. Lepis, supra, 83 N.J. at 154-55, 416 A.2d 45.
Where equitable distribution is sought pursuant to N.J.S.A. 2A:34-23,
an earlier separation agreement will be a bar to such relief only if, and
to the extent that, it can qualify as a property settlement, and can likewise
be shown to have been fair and equitable. Only then can it be said to be
the substantial equivalent of an equitable distribution of marital assets,
sufficient to justify denial of such relief. Smith v. Smith,
72 N.J. 350 (1977)371 A.2d 1.
