The Pitfalls of Making “Side-Deals” in Divorce

By Robert B. Kornitzer, Esq., and Zach Levy, Esq.

A Property Settlement Agreement (“PSA”) is the blueprint for how the parties to a divorce agree to divide assets, and establish custody and support, among other issues to be resolved. Before the court can properly incorporate the PSA into a Judgment of Divorce, however, it is necessary to establish on the record, that both parties actually understand the agreement and are not entering into the agreement under duress, under the influence of drugs or alcohol, and believe that the agreement is fair. If a party does not completely understand the PSA, does not believe it to be fair, or agreed to it as a result of some improper threat, it is critical that the party speak up prior to a final Judgment of Divorce being entered.  Parties are generally not permitted to re-litigate their divorce later, simply because they decide later on that they could have done better, or agreed to something that they probably shouldn’t have agreed to.

In Corman v. Corman, the plaintiff-wife waived equitable distribution to certain real property owned by the defendant-husband located in Brooklyn, New York. Why the wife agreed to waive equitable distribution with respect to these assets was perplexing to all involved, and something her attorney specifically advised her was a bad deal. Nevertheless, before the Judgment of Divorce (which would incorporate the PSA) was finalized, the wife gave testimony that she understood the terms of the PSA and intended to be bound by it. The wife also denied the existence of any side deals. About one year after the divorce was finalized, however, the wife moved to set aside certain portions of the PSA, including the portion regarding the Brooklyn properties. Contrary to her earlier testimony, the wife now argued that the PSA was essentially a contract of adhesion, and she only agreed to it primarily because of the husband’s promise to keep the family intact after the divorce. The wife also argued that the husband represented to her that the Brooklyn properties were in a state of financial collapse, and he wanted to secure a divorce so he could file for bankruptcy without damaging the wife’s credit.[1]

In the end, the court disagreed with the wife’s position, and declined to set aside the requested portions of the PSA. Applying well-established principals of contract law, the court noted that a party to an agreement (such as a PSA) is bound by the apparent intention that he or she outwardly manifests to the other party according to the actual terms of the agreement. To that end, it is immaterial if the party had some secret or unknown intent, even if that intent differs from the actual terms of the agreement. Accordingly, even if the wife secretly believed she was giving up rights to the Brooklyn properties in exchange for the husband’s promise to keep the family together, that understanding was not evident in the terms of the PSA itself and therefore cannot be a basis to reform the PSA.

The result in Corman shows the major risk a party to a PSA takes by making a side deal that differs from the actual terms of the PSA. If the other party fails to follow through with their end of the side deal, there is a strong likelihood that no recourse will be available to the other party, and they will be stuck with the terms of the PSA as written.

 

[1] It is unclear if this was a misrepresentation.

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Social Media and Family Court

social media
social media

The explosion of the numerous forms of social media has in many ways created a potentially fundamental alteration of the way in which family law litigation is conducted.  I will be addressing social media issues in future blogs as well as in this blog as this recent phenomenon (who ever heard of Facebook seven years ago?) has had a profound impact on the way that issues like custody and even financial issues will be addressed.  I will offer an example in this blog of the impact of social media with possible ramifications and will further develop the potential opportunities and dangers to litigants in future blogs and articles.  My example of what we see is based on an actual incident that I have witnessed.  The details here are not important but the broader issues raised are very significant.

We can start with Facebook and stream of consciousness allegations made by a parent in a custody matter.  This particular matter was a bitterly-contested custody dispute that extended many years after the divorce and the original custody determination.  The former wife (we will call her “Sally”) made the allegation in her court documents that her former husband (we will call him “George”) had recently attempted to burn her house down by setting fire to her porch.  She was obviously attempting to raise to the court concerns over George’s mental stability.

In addition, Sally was simultaneously posting entries on Facebook as to her beliefs of George’s alleged arson and her fears of him.  Multiple posting by Sally and her “friends” on Facebook ensued, with many postings, decrying the alleged mental instability of George.  These postings were viewed by George’s personal acquaintances, business referral sources and even the parties’ daughter, who was a “friend” of Sally’s on Facebook.  George finally learned about this from a “friend” who advised him of the exchange.

A copy of the postings were forwarded to George, which George read with disgust, knowing that the allegations were untrue and realizing that his reputation was being sullied with him powerless to prevent it.  However, George was even more astounded when he read the final postings that contained Sally’s admission that she was wrong; that the fire was as a result of a frayed electrical cord.  The court eventually learned of the misrepresentation.  Sally never issued an apology to George, either personally or on Facebook.

Look at all the possible issues that were created by Sally’s postings. She disseminated false allegations to possibly hundreds of people, many of who know both parents.  Does George have a possible tort action against Sally?  Sally may have admitted to falsely certifying to the court serious allegations about George affecting perceptions about him.  Was Sally attempting to alienate the child against George, knowing the child would be reading her posts and her other friends’ posts?

It is clear that use, or more accurately, misuse of a social media can have significant impact on a custody matter.  This theme will continue to be developed in future entries.

Does College Attendance Have To Be “Full-Time”?

Other than modification of previously ordered support, I have not seen any issue litigated more post-judgment (after the divorce) than emancipation of a college-age child.  The reason seems obvious – the cost of maintaining a child in college and until graduation can be daunting.  Many parents of college students have sought that the Courts adopt a bright-line rule regarding college attendance – either the student is full-time or the student is deemed emancipated.

However, a recent appellate decision has re-emphasized the soft-spot that the Courts have for children who have survived their parents’ divorce. In an unpublished decision, the Court affirmed Bergen County Judge Lisa Perez Friscia’s decision that it would be unfair to ignore the “totality of circumstances” of the child’s college attendance.  The child may not have been “full-time” each and every semester, but when including summer classes with the balance of the child’s workload, the child satisfied reasonable expectations of a college workload.

The bottom line is that litigants should not fixate on the individual pieces of the college picture that suit their personal position on emancipation.  Before jumping into a motion to have a child declared emancipated, it is important to step back and view the totality of the childs efforts over time.