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

In A New Jersey Divorce, What Happens if one of the Parties Cannot make Decisions for Themselves?

As a New Jersey divorce attorney for the past two decades, I have seen it all.  On a few occasions, one of the parties, for one reason or another, becomes unable to make the vital decisions involved in a New Jersey Divorce.  At this point, either their family or a judge of the New Jersey Superior Court will designate decision making on their behalf to a power of attorney. The power of attorney will act on behalf of the person in personal matters, business affairs, and even legal issues. However, what most people are unaware of is that the scope of legal matters a power of attorney can act in is limited, especially in the context of a New Jersey divorce. Let’s explore.

Until very recently, the New Jersey courts had never addressed the idea of the ramifications that a power of attorney acting on behalf of a person in a  may have in a New Jersey divorce proceeding. The courts had typically allowed, for the most part, power of attorneys to step in and take charge if the person was incompetent and incapable of making his or her own decisions, yet the question of whether to allow a power of attorney to act as an agent in a divorce matter was unrequited. However, on July 15, 2014 the case of Marisco v. Marisco was decided, which focused on this very issue.     

The question at hand in the Marisco case was whether a litigant could appear in a divorce proceeding through a designated power of attorney. The plaintiff and defendant were much older, 80 and 84 respectively, and had gotten married in 1978. While the couple bore no children of the marriage, the defendant did have a daughter from a previous marriage. In December 2012, the defendant decided to appoint his daughter as his power of attorney. He entrusted her with making financial decisions on his behalf and also granted her the authority to “institute, prosecute and defend any actions or proceedings brought in any court.”

In January 2013, the plaintiff sought a divorce from the defendant (talk about a gray divorce!) Both parties retained their own attorneys to represent them in the divorce matter; however, the defendant did not sign his accompanying certification pursuant to New Jersey Court Rule 5:4-2. Rather, the defendant’s daughter and power of attorney signed the certification page. Of course, the plaintiff objected, arguing that her husband was competent to represent himself in the divorce and that he could not designate his daughter as power of attorney to act on his behalf in the proceeding. Additionally, the plaintiff raised the issue of the defendant’s daughter having a personal interest in the divorce, as she could potentially inherit assets and property from the divorce. 

When the issue was brought before the court in Ocean County, the court held that the defendant’s daughter could not appear in the divorce matter as his designated power of attorney. “The need for a party in divorce litigation to testify personally, rather than through a designated third person, exists not only at trial, but in motions and other pre-trial proceedings as well.” Given the fact that the defendant was not mentally incompetent to represent himself, it would be unreasonable for the court to permit him to have his power of attorney act on his behalf in this instance.

Additionally, the court quoted the Committee on the Unauthorized Practice of Law, stating “Powers of attorney often include provisions empowering the agent to “pursue claims and litigation.” This provision permits the agent to act on behalf of the principal as the client in a lawsuit. An attorney-in-fact (the holder of a power of attorney) may make decisions concerning litigation for the principal, such as deciding to settle a case, but a non-lawyer attorney-in-fact may not act as lawyer to implement those decisions . . . . Nor may an agent appear on behalf of a principal in court as a pro se party; only the real party in interest – the principal, not a non- lawyer agent – is permitted to appear in court pro se. R. 1:21-1(a).”

In the Marisco case, the defendant’s daughter would not be appearing pro se in court. Instead, she would be acting on behalf of her father, but with his lawyer present. She was not authorized to sign pleadings, certifications, or affidavits on her father’s behalf. Rather, she could only testify as a witness as to a matter she personally had information on if called to the stand. Therefore, the court barred her from representing her dad during his divorce.

If you have recently been designated a power of attorney and would like to discuss your role in family matters, please contact my office to discuss the situation with a New Jersey divorce lawyer at my firm. Thank you.