Only Fair and Equitable Agreements are Enforceable

The reasonableness and fairness of a Matrimonial or Property Settlement Agreement is often overlooked when determining whether it should be enforced.  An often favored concept by our court’s is its reliance on Peterson v. Peterson, 85 N.J. 638 (1981) and Smith v. Smith, 72 N.J. 350 (1977), which say that settlement agreements, because of their voluntary and consensual nature are entitled to “considerable weight” and should not be “unnecessarily or lightly disturbed.”  But, that only applies IF that agreement is fair/just and equitable.   This is a notation that existed well before the seminal case of Lepis v. Lepis, 83 N.J. 139 (1980) or the above cited cases.

A 1960 Supreme Court told us in no uncertain terms, a settlement agreement is a contract, and is only enforceable “to the extent that they are just and equitable”.  Schlemm v. Schlemm, 31 N.J. 557 (1960).  While there is a strong public policy in favor of maintaining stability of settlements in matrimonial matters (Konzelman v. Konzelman, 158 N.J. 185 (1999)) that policy must be tempered by the requirement that only those agreements that are “fair and just” shall be enforced.

To enforce an agreement simply because the word “Agreement” is written atop does a disservice to the entire Court system and trivializes our Judges’ roles in the process, who are not on the bench simply to rubber stamp such documents.  If one party challenges the validity of an agreement, a court must undertake to determine whether it remains fair and equitable.  If not, it should not be enforced. 

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SSA Enjoys Immunity Despite Failing to Properly Garnish Child Support

The Appellate Division held yesterday, October 18, 2011, that the “United States enjoys sovereign immunity from liability for damages arising from the Social Security Administration’s (SSA) failure to withhold disability benefit payments pursuant to a proper state child support garnishment order.”  In this case, a mother filed suit against the federal government, on behalf of her daughter, for who child support was awarded, because of the SSA’s failure to make timely garnishments from the father’s social security benefits.  At the time of the father’s death, he was $79,546 in arrears with his support obligation. The “SSA has paid [the mother] a retroactive award of Social Security disability benefits totaling $58,947.60, and did not garnish any of this award to satisfy child support arrears.”  

Based on the essential facts, which were not in dispute, the Law Division granted summary judgment in favor of the mother, and ordered the federal government to pay the mother, on behalf of the daughter, compensatory damages, prejudgment interest, and counsel fees and costs.

The Appellate Division reversed that decision finding that the mother’s claim was barred by sovereign immunity under 42 U.S.C.A. § 659.

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Restraining Orders

The New Jersey Appellate Division yesterday, in SMK v. CR, again makes clear that in order for a Final Restraining Order to be entered, the ‘victim’ needs to show more than just a predicate offense.  To prevail the ‘victim’ must also prove that a FRO is necessary for his/her protection.  This was a case on appeal from a directed verdict, wherein the trial court dismissed the plaintiff's Temporary Restraining Order after she presented her case, but failed to offer any evidence that a Final Restraining Order was necessary for her protection. 

The Appellate Division found that the trial courts analysis with regard to Silver was correct even on a directed verdict.  The Appellate Division went on to clarify that "The primacy of the second step in the Silver analysis — the determination as to whether an order is necessary for the protection of the victim — was recently reaffirmed. J.D. v. M.D.F., ___ N.J. ___, ___ (2011) (slip. op. at 37). That second step "serves to ensure that the protective purposes of the Act are served, while limiting the possibility that the Act, or the courts, will become inappropriate weapons in domestic warfare." Ibid.

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