Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

In A New Jersey Divorce Court, What Are Unclean Hands?

“Unclean hands” are when either the husband or wife is acting in bad faith during a Court proceeding.  In my experience as a divorce attorney, this can range from perjury to fraud upon a New Jersey Family Court.  As a consequence of coming before the court with unclean hands, the lawyer for the other party may use this as a defense that the remedy sought by the other attorney, on behalf of their client, should not be allowed on equitable grounds, as it would be unfair. 

As an experienced divorce attorney I know that anyone who seeks relief in a New Jersey Family Part court must come with clean hands. When someone wants relief from a result of their own wrong doing, where that same person’s unclean hands have cause the very subject matter of the suit, recovery is barred. This is because a court of equity, such as a Family Part court, should not be used as a tool for injustice. As such, if fraud, bad faith, or unconscionable acts by a moving party are the basis for a lawsuit, fairness will not allow a court of equity to grant that wrongdoing party relief. A great example of unclean hands is the actions of ex-husband Richard Siegel, in the 1990 case of Siegel v. Siegel, in which the Family Part judge stated “to sanitize the Defendant’s hands would require an amputation.”

In Siegel v. Siegel, ex-wife, Arlene Siegel, filed a motion to increase alimony. In the final judgment of divorce, entered on January 31, 1990, her ex-husband, Richard Siegel, was ordered to pay 5,000 a month in alimony. In addition to alimony, Arlene was awarded equitable distribution structured in three separate cash payments. Richard was ordered to pay $ 36,666.85 by March 1, 1990, $ 125,000 by January 15, 1991, and another payment of $ 125,000 by January 15, 1992.

 Her ex-husband failed to pay a past cash payment for alimony, and filed a voluntary bankruptcy petition. In doing so, he was temporarily relieved of his obligation to make the non-alimony cash payments he owed his ex-wife. In response, Arlene filed a motion to increase alimony, to make up for the money see lost by the automatic stay on her on the other non-alimony cash payments owed to her, an amount which totaled $ 286,66.85. The Family Part of Middlesex County explained that the Family Part’s role as an arbiter is to be fair. The Honorable Judge Berman described Richard’s petition as deviant and frivolous. Upon a close inspection, the bankruptcy petition revealed that Richard’s assets actually exceeded his liabilities by a significant amount. He listed $ 1,453,150 in assets compared to $ 898,542.03 in liabilities, an amount which included the $ 286,666.85 he owed to his ex-wife Arlene. Judge Berman also observed that Richard had greatly understated his assets and dramatically exaggerated his if not manufactured his liabilities. For example he included significant amounts he labeled as “contingent” in his total liabilities. He also had other questionable liabilities like unproven gambling losses. The judge stated that while he did not have the authority to adjudicate bankruptcy proceedings, it was still clearly apparent that the filing jeopardized Arlene’s nest egg that was due to her from thirty years of marriage.

Even though New Jersey had not yet ruled on the validity of a motion to increase alimony while the alimony payor is in the reorganization process at the United States Bankruptcy Court, two other states have. In the 1988 Wisconsin Court of Appeals case of Eckert v Eckert, a final judgment of divorce awarded a wife an support award $ 150 a week for eighteen month. The final judgment of divorce also obligated the husband to be responsible for some credit card debt. The ex-husband then got that debt obligation discharged by filing for bankruptcy. After that the creditors pursued her for the debt instead. As a result, the ex-wife filed a motion for increased support, and get rid of the eighteen month termination date. While the trial court did not decide to increase the support amount, it did get rid of the eighteen month termination date. The Court of Appeals in Wisconsin, determined that the support modification was not a re-creation of the discharged debts, it did not get in the way of the bankruptcy code’s goal of giving the debtor a fresh start, and did the violate the supremacy clause of the United States Constitution.

Similarly, a Court of Appeals in California reduced the amount of an ex-wife’s support award because she received a discharge of her debts through filing for bankruptcy, which then became her ex-husband’s obligation. As such, the Family Part stated that according to every notion of fairness in conjunction with the legal authority of other jurisdictions compelled the court to conclude that Arlene had established a classic Lepis case of changed circumstances that warranted an increase to her monthly alimony award, because she now has to spend a full month’s alimony just to cover the retainer payment for a bankruptcy lawyer.  

Arlene also asked the Family Part to award her counsel fees. She analogized her situation to that of an application to enforce the payment of equitable distribution. In such a case she would be entitled to receive counsel fees. She argued, a fortiori, that she should also be entitled to counsel fees in this case because she is being forced to go to court to.  protect her property. A fortiori means “for similar but more convincing reasons.”

Arlene and Richard both agreed that the matter rested upon the authority of Rule 4:42-9(a)(1), which provides that a Family Part court, in its discretion, has the authority to grant an allowance or award, either pendent lite or on a final determination, on any claim for divorce, alimony, support, visitation, custody, equitable distribution, enforcement of interspousal agreements, and separate maintenance relation to family law issues. Pendente lite is a financial award during the actual process of a lawsuit, or while the litigation is still ongoing. Any pendente lite award can include a fee to cover any prospective services to be performed during the litigation, such as counsel fees.

The Family Part of Middlesex County explained that even though a bankruptcy action is not technically a “family” action, the judge cited the famous judge Learned Hand who said, “there is no surer way to misread a document than to read it literally,” and Arlene reasoned that the Family Part should not rely on hypertechnicality, when it is plainly outweighed by the equities in the case.

In Siegel, Richard had cheated on his wife during the marriage, gambled and lost around $ 300,000 playing blackjack in Atlantic City, forged Arlene’s signature on a tax return, defrauded the Internal Revenue Service, and was now subject to a bench warrant for failing to pay any alimony at all for the month of April, 1990. The Family Part of Middlesex county explained that anyone who comes into a court of equity, such as a Family Part court, must come with clean hands. When someone wants relief from a result of their own wrong doing, where that same person’s unclean hands have cause the very subject matter of the suit, recovery is barred. This is because a court of equity, such as a Family Part court, should not be used as a tool for injustice. As such, if fraud, bad faith, or unconscionable acts by a moving party are the basis for a lawsuit, fairness will not allow a court of equity to grant that wrongdoing party relief. In a telling and rather artful display of language, the Family Part judge stated “to sanitize the Defendant’s hands would require an amputation.”

In the 1986 Supreme Court case of Crowe v. DiGoia, Justice Stein noted that in a family law mater a spouse forced to sue to compel enforcement of a support obligation he or she may be entitled to a grant of counsel fees. This is because the court realizes that it costs money to enforce a right in court. Therefore, the court may award counsel fees, to avoid the dilution of the support award by legal expense.

Therefore, based on the pleadings and affidavits submitted, and in light of Richard’s unclean hands, Arlene’s alimony award was increased from $ 5,000 a month to $ 6,000 a month. The court further awarded Arlene a counsel fee award of $ 3.182.50 for the cost of filing the motion, and defending the cross-motion.

My office stands prepared to assist you if you are facing a divorce.