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

In a New Jersey Divorce, May I Use a Power of Attorney?

Lawyers in New Jersey understand that, especially in a divorce case, the importance of oral testimony and written certifications in divorce proceedings. Attorneys (and N.J. Family Court Judges) extract testimony occurs at many junctures of a contested divorce. First, many New Jersey divorce cases involve motion practice that require lawyers and litigants to prepare and execute written affidavits or certifications in which the husband or wife swear to tell the truth.  Needless to say, divorce cases are extremely fact-sensitive and therefore require “first-hand” knowledge that only the person getting divorced can provide. A divorce case then moves ahead to the discovery phase, where parties sign Case Information Statements, and possibly approve certifications for motions.  In more complex cases, interrogatories and depositions may be required.  All told, your attorney will need this essential information to come directly from you.

In the recent case of Marsico v. Marsico, the Superior Court of New Jersey held that in the interest of reliable fact finding, a party must testify and certify in person, and cannot utilize a power of attorney for the same purpose.

In Marsico v. Marsico, an eighty-four year old man was not allowed to assign a power of attorney to appear on his behalf and testify in a divorce proceeding. New Jersey’s Revised Durable Power of Attorney Act, N.J.S.A. § 46:2B-8.1 et seq., does not authorize a party to delegate the responsibility for written certifications or oral testimony in a contested divorce. There was simply no evidence of illness, injury, or any other restrictive force that prevented Louis Marsico from being part of the proceedings.

A power of attorney is a written document in which one person, the principal, appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent, or attorney in fact, to perform certain acts or functions on behalf of the principal. Powers of attorney can be written to be either general, or limited to special circumstances. A power of attorney generally is terminated when the principal dies or becomes incompetent, but the principal can revoke the power of attorney at any time.

Louis and Beverly Marsico were ages eighty and eighty-four, respectively, when they decided to get a divorce. The two had married in 1978 and did not conceive any children during their thirty-five years of marriage, but Louis had a daughter from a previous marriage, named Laura Mertz.

In December 2012, Louis signed a power of attorney that assigned Laura as his “true and lawful attorney-in-fact.” The document allowed Laura to oversee his affairs, and manage numerous financial actions of his behalf. The power of attorney also authorized Mertz to institute, prosecute and defend any actions or proceedings brought in court. Finally, Louis named Laura’s husband, Timothy, as his alternate attorney-in-fact.

Within three months, Beverly hired a lawyer and filed for divorce, seeking equitable distribution of the marital assets. Eventually, Louis hired his own lawyer who filed an answer and counter-claim on his behalf. The lawyer also filed a certification pursuant New Jersey Rule 5:4-2. However, Louis did not sign this certification. Laura had signed the document on his behalf, as his newly appointed attorney-in-fact.

Beverly’s lawyers immediately objected to Louis having Laura sign court papers and appearing in court for divorce litigation on his behalf. They argued that Louis had not been declared legally incompetent or unable to handle his own affairs, and therefore should have to appear in divorce court. Alternatively, the argued that even if the use of a power of attorney was permissible in divorce court, there was still a potential conflict of interest because Laura had a personal interest in the proceeding as she was Louis’s child and potential heir to marital property that would otherwise be subject to equitable distribution.

On the other side, Louis’s counsel argued that there was nothing wrong with using Laura as a power of attorney in a divorce. They maintained that there was no court rule that expressly prohibited using a power of attorney in a divorce proceeding, and more importantly a person has a legal right to assign a power of attorney to take care of legal affairs.

Neither side’s attorneys were able to find any New Jersey case law that specifically addressed whether a person in a divorce related proceeding could or could not, appoint a third party as an attorney-in-fact, to appear on the principal persons behalf in court.

The Superior Court of Ocean County noted that Louis’s lawyers were correct that a competent person has the right to appoint another to act on his or her behalf as an attorney in fact. This right is enumerate in New Jersey Statute 46:2B-8.1, or New Jersey’s Revised Durable Power of Attorney Act. The court stated that a Power of Attorney is a written document signed by a person known as the principal, that authorizes another person known as the attorney in fact, to perform certain acts of behalf of the principal, as his or her agent. These acts may include conducting legal affairs such as retaining and communicating with a lawyer, and authorizing the same lawyer to commence legal action in the principal’s benefit. In Marsico, the issue was whether an attorney-in-fact had the power to sign written certifications or render oral testimony in a contested divorce. The Revised Durable Power of Attorney Act does not explicitly authorize a person to delegate such an important duty to another person. On the contrary, the court found that a competent party cannot assign an attorney in fact, either through a power of attorney or otherwise, to testify on his or her behalf without consent of the other party or court order.

The court made special note that in the world of family law, fact finding is largely dependent of the testimony of the parties themselves. This involves a focus on private issues, dealings and communications between spouses. A participant in a divorce cannot avoid this obligation by assigning another to testify on his or her behalf. To allow the same could lead to a situation where a party who wishes to avoid revealing certain information or issues, to giving power of attorney status to a third party who might now have any personal knowledge of the information at issue.

The court made clear that it did not think that Louis was intentionally trying to subvert the judicial process by avoiding direct testimony. However, while the court did think it was possible that he was trying to use the power of attorney process for convenience due to age or health-related issues, Louis failed to supply any evidence that he was infirm or otherwise unable to take care of his own affairs without the assistance of his daughter or another third party. Most importantly, the court noted that allowing any divorce litigant the unrestricted power and freedom to assign a third person as power of attorney to testify on his or her behalf may lead to serious misuse by parties who could employ the process strategically for inappropriate and improper purposes that might hinder the fact finding process.

Testimony occurs at many times during a contested divorce. First, written affidavits or certifications must accompany the initial proceedings, such as a party’s affidavit of verification and non-collusion under New Jersey Rule 5:4-2(c), an affidavit or certification of insurance coverage under Rule 5:4-2(f), and an affidavit or certification of notification of dispute resolution under Rule 5:4-2(h). Later, the case moves ahead to the discovery phase, where parties sign case information statements under Rule 5:5-1(a), and possibly approve certifications for motions under Rule 5:5-4. Lastly, there will be a trial for all divorce cases that cannot settle. This brings with it courtroom testimony, followed by the possibility of cross-examination. Moreover, even if a person chooses not to take the stand in his or her own case, the opposing party may still call him or her as a witness in the interest of gathering information and evidence relevant to credibility.

If an attorney-in-fact was allowed to testify in court on the principal’s behalf, the court would be at risk of incomplete or unreliable information. But, there are circumstance when a party in a divorce is mentally or physically unable to testify. In such a circumstance the judicial process would be flexible enough to accommodate a fact-sensitive situation when necessary. However Louis had not established that he was mentally incompetent, and that he could not proceed with the divorce without Laura. As a result, the court denied Louis’s request to allow his daughter appear in court by power of attorney. While, Laura was not judicially authorized to sign pleadings, affidavits or certification, she was allowed to testify as a witness in her own capacity on matters she had personal knowledge of. Louis was advised that if he wished to proceed with his answer and counterclaim, he would have to sign his own pleadings and affidavits or certifications within twenty days, and serve the same on Beverly’s attorneys. 

To learn more about how my family law and divorce law firm may help you, please contact my office today.