What Can I Do If My Divorce Agreement Is Unfair?

Under the law of divorce here in the state of New Jersey, a party can have their lawyer file a motion to set-aside a Matrimonial Settlement Agreement for fraud, coercion or unconscionable (i.e., unfair) but only within one (1) year of the entry of the Final (or Dual) Judgment of Divorce by a judge of the Superior Court of New Jersey. Otherwise you must prove a significant change of circumstances in order to have any aspect of your marital property settlement agreement to be changed by a New Jersey Family Court. Of course, when appropriate, the attorneys at our law firm file motions seeking such relief. Here is a case wherein one party sought to have their divorce agreement vacated because it was “unfair.”

In Tirendi v. Tirendi, the parties were married and had three children born of the marriage. During the marriage, the wife discovered that the husband was having an affair, so she consulted with an attorney to discuss divorce. The wife and her attorney drafted a marital separation agreement, which is an agreement to settle important matters that come up when a couple chooses to separate or divorce. The marital separation agreement stated that the wife would have sole legal custody of the parties’ three children, meaning the wife could make all important decisions regarding the children without needing to consult the husband. The agreement also stated that the husband would have parenting time every other weekend to be agreed upon by both the husband and the wife. Additionally, the marital separation agreement stated that the wife would keep the marital home and property inside the home, as well as a joint brokerage account and retirement accounts. According to the agreement, the husband would pay the wife alimony from the parties’ jointly owned and operated marketing business. The agreement also stated that the husband would receive a car and would pay the remaining mortgage balance, which totaled $300,000. Lastly, the agreement stated that the husband was responsible for the debt acquired from an indoor horse-riding arena that was built. The wife’s attorney sent the proposed marital separation agreement to the husband and informed the husband that he had the right to speak with an attorney before signing the agreement.

The husband signed the marital separation agreement three days after receiving it, and did not consult an attorney before signing the agreement. The husband received a complaint for divorce approximately two months later. The husband signed a waiver of answer four days later and consented to the entry of a judgment of divorce, which included the signed marital separation agreement. Although the husband was advised of his right to seek counsel and legal advice, the husband did not consult an attorney before consenting to the entry of the judgment of divorce. The judgment of divorce was filed on April 29, 2014.

The parties continued to live together for several months after the judgment of divorce was entered. The parties also went to counseling, participated in sexual relations, continued to operate the business together, and went on family vacations together. At the same time, the parties began to date other people. The husband did not move out of the marital home until seven months after the divorce was finalized. When the husband did move out, he moved into the pool house on the property. Three months after the husband moved into the pool house, he transferred the retirement accounts to the wife as required by the marital separation agreement. Four months later, the husband moved out of the marital home and off the property.

The husband filed a motion, almost fifteen months after the judgment of divorce was entered, with the Superior Court of New Jersey Family Part to vacate the judgment of divorce and set aside the marital settlement agreement. The husband noted that his motion was filed within eight months of receiving a copy of the judgment of divorce. The trial judge denied the husband’s motion and request for a plenary hearing regarding the marital separation agreement on November 2, 2015. A plenary hearing occurs when the judge needs to hear testimony from the parties because issues of material fact have been raised and need to be resolved. The trial judge also ordered that the parties go to mediation to resolve custody and parenting time issues. The judge held that the marital separation agreement indicated that the wife wanted a divorce when she sent the agreement to the husband; therefore, the marital separation agreement was not an invalid mid-marriage agreement. Although the judge found that the agreement highly favored the wife, he noted that the husband did not seek legal advice even when advised to, and found that the agreement was enforceable.

On appeal, the husband argued that the wife deceitfully convinced him to sign the marital separation agreement as a condition to saving their marriage. The husband claimed that he filed his motion timely under the Rule, and that the agreement should be vacated because it is inequitable and unjust. The New Jersey Appellate Division stated that parties to a divorce may ask the court to vacate a marital separation agreement. The Appellate Division explained that a marital separation agreement may be vacated if it was obtained by misrepresentation or fraud, or any other reason justified by the court. However, relief under the Rule must be requested within one year after the entering of the judgment. The purpose of allowing a court to vacate such an agreement is equity and fairness; therefore, the party that filed the motion must show that it would be inequitable or unfair to enforce the agreement. Also, the court noted that an application to vacate a marital separation agreement under the catchall provision must be made within a reasonable period after the judgment has been entered.

The Appellate Division stated that it must give deference to the trial court when the trial court’s decision was supported by credible and adequate evidence, especially since the trial court judges are experts on family matters. The Appellate Division explained that mid-marriage agreements are unenforceable because they are inherently coercive since a marriage is not yet over and one of the parties wanted the marriage to continue. The court further explained that pre-nuptial agreements are enforceable because a party is free to walk away before the marriage, and property settlement agreements are enforceable because they are created in contemplation of divorce with the parties being in adversarial positions.

The Appellate Division stated that the husband’s application to vacate the agreement was made beyond the one-year period, specifically fifteen months after the judgment of divorce was entered. The court held that the husband’s argument that he received a copy eight months after had no merit because he was aware that the judgment was entered and he consented to the entry by waiving his right to answer. The Appellate Division found that the record supported the trial court’s finding that the wife did not coerce or fraudulently induce the husband to sign the marital separation agreement, nor was the agreement made as a condition to save the parties’ marriage. The court found that the fact the parties continued to live together and partake in marital activities after the divorce did not demonstrate that the parties intended to continue their marriage when the agreement was made. Furthermore, the court stated that the fact the husband moved into the pool house and transferred the retirement accounts supported the enforceability of the marital separation agreement. Lastly, the Appellate Division found the fact that the husband did not obtain an attorney or seek legal advice after being advised to do so by the wife’s attorney demonstrated that the husband was not forced or deceived into signing the marital settlement agreement. Ultimately, the Appellate Division affirmed the decision of the trial court and held that the marital separation agreement is enforceable.