Property / Divorce Settlement Agreements

Guide to "Family Law" in New Jersey

Law Lessons from: VIGLIONE v. VIGLIONE (App. Div., A-4096-03T3, March 1, 2006, not approved for publication): The parties' agreement cannot deprive a court of its equitable powers respecting the support of a dependent spouse. Morris v. Morris, 263 N.J. Super. 237 (App. Div. 1993).

Law Lessons from CITKOWICZ v. CITKOWICZ (App. Div., A-4449-04T3, March 17, 2006, not approved for publication): In Glass v. Glass, 366 N.J. Super. 357, 372 (App. Div. 2004), the court held that the agreement of the parties, particularly when it is incorporated into a judgment of the court, is entitled to deference and its contents should be given significant consideration. Public policy favors the enforcement of consensual arrangements for support, as occurred here. Ibid. The enforcement of such arrangements provides the parties with stability in their affairs. Ibid.

The overall analysis regarding whether or not to modify a PSA is one of equity. The court must consider:
(1) the adequacy of the agreement at inception, the presumed understanding of the parties at that time,
(2) the reasonable expectation of the parties during the life of the agreement,
(3) the manner in which the parties acted and relied on the agreement [and]
(4) the previously stated principle that agreements by their very nature carry with them a stability that must be respected at the time of enforcement or even during periods when modification is at issue.
Ibid.

Law Lessons from CAREY v. CAREY (App. Div., A-6246-03T2, March 21, 2006, not approved for publication): Parties may stipulate in an agreement as to the payment of counsel fees. Jobe v. Jobe, 197 N.J. Super. 396 (App. Div. 1984).

Law Lessons from CAREY v. CAREY (App. Div., A-6246-03T2, March 21, 2006, not approved for publication):

The law of N.J. is that a parent's child support obligation does not automatically terminate at age eighteen, and the obligation encompasses a child's right to college contribution when the parents are financially capable and the child is college qualified. Newburgh v. Arrigo, 88 N.J. 529, 543-44 (1982); Khalaf v. Khalaf, 58 N.J. 63, 71-72 (1971); Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997); Limpert v. Limpert, 119 N.J. Super. 438, 441 (App. Div. 1972).

Parties to a Property Settlement Agreement may stipulate that the law of a foreign state governs their rights and obligations and New Jersey courts will normally adhere to their choice of law. Kalman Floor Co. Inc. v. Jos. L. Muscarelle, Inc., 196 N.J. Super. 16, 21 (App. Div. 1984, aff'd, 98 N.J. 266 (1985); Haynoski v. Haynoski, 264 N.J. Super. 408, 413 (App. Div. 1993). However, N.J. courts have declined to adopt a per se rule of enforceability of negotiated agreements between spouses, especially when they relate to children residing in this State. Fantony v. Fantony, 21 N.J. 525, 535 (1956); Black v. Walker, 295 N.J. Super. 244, 253-54 (App. Div. 1996); Massar v. Massar, 279 N.J. Super. 89, 94 (App. Div. 1995). When New Jersey is the forum its choice of law principles will govern. Gilbert Spruance Co. v. Pennsylvania Mfrs. Ass'n Ins. Co., 134 N.J. 96, 102 (1993); McBride v. Minstar, Inc., 283 N.J. Super. 471, 481-82 (Law Div. 1994), aff'd o.b. sub nom McBride v. Raichle Molitor, USA, 283 N.J. Super. 422 (App. Div.), certif. denied, 143 N.J. 319 (1995).

It is settled law and public policy of N.J. that parents cannot bargain away the rights of their children. Zazzo v. Zazzo, 245 N.J. Super. 124, 130 (App. Div. 1990), certif. denied, 126 N.J. 321 (1991) ("There is no divorce between parent and child."). The right of support belongs to the child, not the parent. Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993).

While PSA provisions incorporating foreign law as to issues of alimony or equitable distribution are more readily recognized and enforced, the rights of resident children cannot be terminated or circumscribed contrary to the law and public policy of N.J.

The anti-retroactive support statute [N.J.S.A. 2A:17-56.23a3] prevents retroactive modifications decreasing or vacating child support orders but does not insulate parents from retroactive increases. Keegan v. Keegan, 326 N.J. Super. 289, 291 (App. Div. 1999).

Where the amount of child support fixed in a PSA is artificially low and obviously inadequate, the Court has the equitable discretion to retroactively increase child support. See Tash v. Tash, 353 N.J. Super. 94, 100 (App. Div. 2002).

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