Equitable Distribution

Competent Spouse Cannot Proceed in a Divorce Proceeding Through a Power of Attorney

The family law, divorce case of Marsico v. Marsico, DOS no 20-4-4566, (July 15, 2014) presents the novel question of whether a litigant may appear and testify in divorce proceedings through a designated power of attorney (POA).

Plaintiff and defendant are octogenarians, aged 80 and 84, respectively. They wed in 1978. The parties have no children together. Defendant, however, has an adult daughter from a prior marriage, Laura Mertz.

In December 2012, defendant executed a POA appointing Mertz as his “true and lawful attorney-in-fact” and empowering her to conduct financial actions on his behalf. Under the terms of the POA, defendant also granted Mertz authority “to institute, prosecute and defend any actions or proceedings brought in any court.” Less than three months later, plaintiff retained counsel and filed a complaint for divorce against defendant, seeking equitable distribution of assets acquired during the parties’ marriage. In turn, defendant also retained counsel, who filed an answer and counterclaim for divorce on defendant’s behalf, along with an accompanying certification pursuant to Rule 5:4-2. Defendant, however, did not sign the certification page personally. Instead, Mertz signed the certification page, in her newly appointed role as defendant’s POA.

Plaintiff’s counsel objected to Mertz’ signing of court papers and appearing on defendant’s behalf in the divorce litigation, emphasizing that defendant had never been adjudicated as incompetent or otherwise unable to handle his own affairs. Conversely, defendant’s counsel contended that there was nothing inappropriate about defendant’s use of Mertz as a POA in the divorce litigation, in that there was no court rule expressly prohibiting same, and a person has a legal right to appoint a POA to handle legal affairs on his or her behalf.

The right to appoint another person to act on his or her behalf as an “attorney-in-fact” under a written POA is embodied in New Jersey’s “Revised Durable Power of Attorney Act.” As regarding an appearing party’s duty to render written certifications or oral testimony in a contested divorce proceeding, however, the statute does not expressly authorize one to delegate such duty to a third person. To the contrary, the court finds that a competent party cannot designate a surrogate, either through a purported POA or otherwise, to testify in his or her place without consent of the other party or court order. Allowing such designation could potentially lead to serious misuse by parties who seek to obstruct the fact finding process.

Reference: New Jersey Law Journal, 217 N.J.L.J. 253 (July 21, 2014)

Filed Under: Family Law: Divorce Proceedings: Power of Attorney.

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