A New Jersey judge made a decision regarding a case of first impression that could have a direct impact on divorce cases for certain individuals. The family law decision declared that a party in a divorce case may not have a third party with power of attorney go to divorce court for him or her or sign pleadings related to the divorce.

The case that warranted the opinion involved two elderly individuals. The husband was 84, and the wife was 80 at the time of the divorce filing. The husband gave his daughter from a prior marriage power of attorney, which gave her the authority to handle any legal action that concerned him. However, his wife objected, stating that the husband had not been found incompetent or incapable of handling his own legal affairs. Additionally, she argued that the daughter had a financial interest in the divorce that amounted to a conflict of interest.

The Ocean County Superior Court judge who decided the case said that divorce cases often require the party’s testimony regarding private issues. He also stated that a person involved in a divorce should not be able to sidestep the testimonial obligations by delegating the task to a person who has power of attorney. He said that a divorcing spouse must personally participate unless there has been a prior finding of the spouse’s incompetence or the need for a guardian.

This ruling shows that individuals who are involved in divorce proceedings have certain obligations if the case is taken to court. However, some former couples might be able to avoid hearings by participating in negotiations regarding a divorce settlement agreement. Both parties should promptly retain knowledgeable and experienced legal counsel to represent their interests during such negotiations while they pursue agreement that provides for both parties’ futures.

The couple also may consider alternative dispute resolution (ADR) for the negotiation, mediation, Collaborative Law approach, or arbitration of their matter. When appropriate, these methods can maintain privacy, efficiency, speed, and lower fees and costs than traditional legal battles.

Source: New Jersey Law Journal, “Ruling Restricts Use of Substitutes in Divorce Cases“, Michael Booth, July 15, 2014