Equitable Distribution

Opponent’s Default in Divorce Case No Advantage in Equitable Division of Marital Assets

A New Jersey family court judge has issued a warning to spouses who win divorce by default: You can’t always get what you want when it comes to division of marital assets.

Ocean County Superior Court Judge Lawrence Jones held in a published decision released Feb. 12th that judges must still engage in fact-finding to arrive at a fair and equitable distribution.

“As a matter of equity…, a defendant’s failure to object or respond to a notice of final judgment cannot automatically be treated as the identical twin of consent, as if the parties had executed a written settlement agreement reflecting a meeting of the minds on specific terms,” Jones wrote in Clementi v. Clementi.

Gayle Clementi and Frank Clementi were married in 1973. They have no children. In March 2013, Gayle filed for divorce. Frank never answered the complaint nor responded to any requests for documents or other relevant information. The couple own a house valued at $200,000 with no mortgage.

After a default judgment was entered against Frank, Gayle sought ownership of the entire home. Jones said no.

“Even in the case of a defendant’s default and non-appearance, the plaintiff still carries the burden of persuading the family court, through testimony and/or other available evidence, that his or her proposed distribution of assets and debts is fair and equitable,” he said.

“The court may analyze all statutory factors, as well as any additional relevant evidence such as defendant’s lack of objection, and reach conclusions based upon the persuasiveness of the unopposed evidence submitted by the plaintiff,” Jones said. “In doing so, the court need not speculate as to what testimony or other contrary evidence defendant might have offered had he or she participated in the litigation.”

In a footnote, Jones said Frank and Gayle eventually reached a settlement that “differed somewhat” from Gayle’s original demand, but which was deemed acceptable by both parties.

Reference: Michael Booth; New Jersey Law Journal, Vol. 215, No. 7 (February 17, 2014)

Filed Under: Family Law; Equitable Distribution: Divorce by Default

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