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Contested Uncontested Hearing (Impermissible Questions from the Bench)

By Charles F. Vuotto, Jr., Esq.

It is certainly not uncommon for judges, in the context of uncontested hearings with Marital Settlement Agreements, to conduct suaspontevoire dire of the parties concerning their understanding of and voluntariness in entering into the MSA. As we put through our uncontested divorces, we have all heard the judge state clearly that he/she has not read the MSA; that he/she does not know what the terms of the MSA are; that the only finding being made is that the parties have entered into the MSA freely and voluntarily and that both parties agree the MSA is fair and equitable. That is why the final Judgment of Divorce states that the MSA may be incorporated, with the understanding that the “Court took no testimony and made no findings of fact as to the adequacy or sufficiency thereof and therefore does not pass judgment on the adequacy or sufficiency thereof, but the Court does find that the parties entered into the Agreement knowingly and voluntarily”. This is all well and good. Why, then, have some judges recently begun questioning our clients as to the particulars of the agreement?

It has come to my attention that some judges, in uncontested hearings where the MSA is silent on the issue of an alimony waiver by one or both spouses, may occasionally ask parties not receiving alimony if they understand that they are “waiving” alimony now, and for all time, and that they can never come back to request alimony in the future. This has occurred in circumstances where one spouse is paying alimony to the other. In these cases, the MSA may or may not provide for any waiver of alimony on the part of the non-recipient payor.   The issue of whether any specific reservation might exist with regard to the right of the payor to receive alimony in the future may be explicit, or left open-ended. It may be that the MSA simply includes fairly typical provisions regarding the alimony obligations owed to the other party. It is this author’s view that such questioning by a judge presuming a waiver of alimony, which is not contained in the MSA itself, is problematic for the following reasons:

  1. The Court is making the assumption that, because a party is not “pursuing” alimony at the time of divorce, such a party is making a “waiver” of alimony;
  2. The Court’s mistaken assumption is leading to a question that suggests a substantive term, which may not be expressly agreed upon between the litigants;
  3. The Court’s voir dire in such cases has the potential of scuttling a negotiated agreement on the day of the put-through; and
  4. The Court’s questioning along these lines stands to neutralize the strategic advantage of one attorney in favorably negotiating the MSA on the one hand, while potentially undermining the relationship of the oppositional counsel and his or her client on the other.


Based on an unintentional misapplication or misinterpretation of the law or training protocol, some judges are asking questions at uncontested hearings that suggest the existence of a substantive term that some parties may not have incorporated into their MSA’s. That should not happen. It is improper for the Court to add substantive terms to a fully executed agreement. ([i])Further, the fact that a waiver was not negotiated does not render the agreement of the parties a nullity. The fact that the parties disagree on how their fully executed and comprehensive MSA may be interpretedin the event a circumstance arises in the future based upon facts that do not currently exist (or did not exist at the time the MSA was signed), is not a basis to fail to enforce the agreement.([ii]) The opinion of one or both of the parties as to how language in an executed agreement would be interpreted constitutes parole evidence. ([iii])

It is questionable why a court would feel the need to direct questioning to a party regarding a provision not set forth in the body of the MSA. Such questioning goes beyond the mandates of New Jersey Court Rule 5:5-2(e), adopted in response to Weishaus v. Weishaus[iv](which modified and clarified Crews v. Crews[v]) relating to marital lifestyle. R. 5:5-2(e) provides that in any matter in which an agreement or settlement contains an award of alimony, the parties must do one of the following: (1) declare that the marital standard of living is satisfied by the parties’ agreement of settlement; (2) define the marital standard of living; (3) preserve copies of each party’s filed Case Information Statement (CIS); or (4) for any party who has not filed a CIS, prepare Part D (“Monthly Expenses”) of the CIS and serve a copy thereof on the other party and preserve that completed Part D until such time as alimony is terminated. The comments to R.5:5-2(e)state that: “Because of the significance of establishing the standard of living at the time of the divorce, dissolution or termination in order to address post-judgment motions, and because of the burdensomeness of a court determination thereof in every case, the rule offers various alternatives through the mechanism of the case information statement.”[vi]Judges asking about waivers of alimony, however, go far beyond any directives under R. 5:5-2(e).Moreover, pursuant to Pacifico v Pacifico[vii], courts are not supposed to add a term to agreements which the parties themselves have not so agreed. Thus, judges raising questions on waivers of alimony when the parties did not so negotiate for such waivers appears to run afoul of established Supreme Court precedent and the Rules of Court.

Many divorce agreements that provide for the supporting party to pay the dependent party some form of spousal support do not generally include a waiver of the right to support by the supporting spouse. Conversely, neither do they set forth a reservation by the supporting spouse of his or her right to seek support at some point in the future. Typically (or at least very often), these terms are left unaddressed. Certainly, if the payee spouse doesnot request a waiver from the payor spouse, the payor spouse would be foolish to offer it up for no consideration. A waiver of alimony by a divorcing litigant is a term that has value and is not the equivalent of failing to pursue alimony.([viii]) In fact, the Courts of this State have refused to enforce alimony waivers under certain circumstances such as where there is a lack of consideration.([ix])Relatively few agreements include a waiver of the right of either party to assert changed circumstances warranting a modification of the MSA. Judges raising waiver questions, however, run the risk of failing to recognize the potential forchanged circumstances arising that may suffice to cause the flow of alimony to reverse.

If the Court was to try the otherwise settled case on all issues, the Court could not then direct that the supporting spouse would be waiving alimony in the future from the supported spouse. To do so would be the functional equivalent of ordering a unilateral non-modifiability clause. There is no provision in the law for such a judicially-imposed resolution, which would be contrary to Lepis v. Lepis.[x]That would be against public policy and the case law of this State.([xi])Although it may be desirable, from a court backlog perspective, to limit the number of litigants attempting to come back after the entry of a divorce to seek certain relief including but not limited to alimony; instructing litigants who did not pursue alimony at the time of their divorce that they are effectively “waiving it” is flawed. Among other things, it amounts to a prohibited prospective bar to litigation on this specific issue.

As a side note, one may argue that the general waiver language in the boilerplate parts of the MSA actually constitutes an “alimony waiver” by the party not receiving alimony. This author believes that it does not.Public policy and the operation of the law can often be relied upon to provide necessary relief, notwithstanding general, and even specific waiver language under appropriate circumstances.

This author contacted the Administrative Office of the Courts (AOC)regarding this issue and has been advised that the Conference of Presiding Family Part Judges has been consulted. Apparently, the training message to judges may have been inadvertentlymisinterpreted by some.As such, the Presiding Judges intend to modify the basic training on this point and the AOC will work on getting out the message to all sitting judges.


The author wishes to thank Curtis Romanowski, Esq., of Romanowski Law Offices in Brielle and Metuchen, New Jersey, Ronald G. Lieberman, Esq., of the law firm of Adinolfi & Lieberman, PA in Haddonfield, NJ and Ashley N. Richardson, Esq., associate with the law firm of Tonneman, Vuotto, Enis, & White, LLC for their contributions to this column.

[1]SeeMiller v. Miller, 160 N.J. 408, 419 (1999); Peskin, 271 N.J. Super. 261 at 275 (explaining that “[c]ourts play an important role in effecting settlement. However, that role must always be exercised appropriately and with full recognition that the court must remain fair and impartial in order to ensure that the ‘settlement [is] wrought by the parties, not by [the court].’”).

[1]See Peskin v. Peskin, 271 N.J. Super. 261, 275-76 (App. Div. 1994).Peskin provides in pertinent part: “If a settlement is achieved through coercion, deception, fraud, undue pressure, or unseemly conduct, or if one party was not competent to voluntarily consent thereto, the settlement agreement must be set aside.” Id. at 276.

[1]SeeAtlantic Northern Airlines, Inc. v. Schwimmer, 12 N.J. 293, 301-02 (1953).

[1] 180 N.J. 131 (2004).

[1] 164 N.J. 11 (2000). The Crews Court required parties “to place on the record the basis for the alimony award including, in pertinent part, establishment of the marital standard of living, before the court accepts the divorce agreement.” Id. at 26.

[1] PRESSLER & VERNIERO, Current N.J. COURT RULES, Comment R. 5:5-2(e), (GANN).

[1] See Pacifico v. Pacifico, 190 N.J. 258 (2007). The Pacifico Court stated that “[a]s a general rule, courts should enforce contracts as the parties intended.”Id. at 266.

[1]SeeMorris v. Morris, 236 N.J. Super. 237, 241 (App. Div. 1993) (stating that “the parties can with full knowledge of all present and reasonably foreseeable future circumstances bargain for a fixed payment or establish the criteria for payment to the dependent spouse, irrespective of circumstances that in the usual case would give rise to Lepis modifications of their agreement.” Id. at 241.

[1] E.g., Stefanacci v. Stefanacci, 2009 N.J. Super. Unpub. LEXIS 597 (App. Div. Mar. 23, 2009).

[1] 83 N.J. 139 (1980).

[1]See Harrington v. Harrington, 281 N.J. Super. 39, 46 (App. Div. 1995); Peskin, 271 N.J. Super. 261 at 274-75.


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