Party’s Non-Appearance at Divorce Hearing Impacts Equitable Distribution
- March 5, 2014
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In Clementi v. Clementi, the a New Jersey Superior Court addressed the issue of how a Defendant’s failure to appear at a default divorce hearing impacted the Plaintiff’s burden of proof concerning the couples’ equitable distribution process. The parties were married in 1973 and remained married for almost forty years. Their marriage did not yield any children. The parties’ main source of employment for the majority of their marriage was a jointly operated store. In 2013, the Plaintiff filed for a divorce from the Defendant based upon irreconcilable differences and sought alimony and the equitable distribution of their marital assets and debts. The Defendant was properly served with the Plaintiff’s Complaint for Divorce but he failed to file a response to the pleading within the time period required by the NJ Court Rules. In June of 2013, the Plaintiff filed a motion with the Family Court requesting that a default divorce judgment be entered against the Defendant. The Defendant failed to file a motion to vacate the default and continued to be a non-participant in the divorce proceedings. In July of 2013, the Plaintiff served the Defendant with a Notice of Proposed Final Judgment and her Case Information Statement, as required by N.J.C.R. 5:5-10. A default divorce hearing was held in August of 2013 and the Defendant failed to appear. The Court held that when a Defendant fails to appear and participate in a divorce proceeding, a Plaintiff is not automatically entitled to a default judgment that awards all of the requests made to the court for equitable distribution. In this situation, the Plaintiff has a persistent obligation to persuade the court, by a preponderance of the evidence, that the requests for equitable distribution are fair and equitable based upon the facts. Further, the court found that a Defendant’s failure to offer an objection to the Plaintiff’s requested equitable distribution in a notice of final judgment is not always the same as an express written consent to those terms and requests. Therefore, the lack of response cannot be the only basis that the court uses to determine whether the Plaintiff’s proposed equitable distribution is fair. Finally, the court decided that the value of a marital debt or asset, relative to the remaining marital estate is a significant factor in determining whether a non-participating party loses all interest in a particular asset. The equitable distribution of assets and debts can dramatically affect the lifestyle of each party following the divorce. The process becomes more difficult if one party fails to participate. If you are involved in a battle over the division of marital property, assets, or debts it is extremely important that you seek out the advice of an experienced attorney before moving forward. For more information about equitable distribution, divorce, spousal support or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.