Over the Christmas holiday I came across a news story detailing a New Hampshire couple’s unsuccessful joint attempt to vacate their 2014 divorce decree on the ground of their reconciliation. In affirming the lower court decision denying their request, the New Hampshire Supreme Court in the case of In the Matter of Terrie Harmon and Thomas McCarron, 2015 WL 7747720 (No. 2015 – 0273; Opinion Issued Dec 3, 2015) held that the family court lacked statutory authority to vacate a decree of divorce upon the joint request of reconciled parties absent a showing of fraud, undue influence, deceit, misrepresentation or mutual mistake. In effect, the Court made clear that simply changing your minds and no longer wanting to be divorced, even if both parties agree, is not a legally valid basis to undo a Final Judgment of Divorce in the absence of an express statutory authorization permitting same. While generally the focus of my practice is getting people divorced, not “un-divorced”, this case made me consider how a New Jersey court might address this or similar issue.
Like New Hampshire, divorce in New Jersey is a statutory remedy, including as to the grounds for divorce (N.J.S.A. 2A: 34-2) or a court’s jurisdiction to enter a divorce judgment. (N.J.S.A. 2A:34-18). Also like New Hampshire (and unlike some other jurisdictions), New Jersey does not have any specific statutory authorization which would allow a court to vacate a final divorce decree upon agreement of both parties. Indeed, prior to 1969, New Jersey Statutes provided that in actions for divorce, courts would initially enter a Judgment Nisi which would automatically become a Final Judgment if not appealed or challenged within three months. This was for the purpose of allowing for a waiting period, postponing the actual dissolution of the marriage in order to provide a cooling-off period and to foster the chance for a reconciliation of the parties. This statute was repealed in 1969. Now New Jersey courts are only statutorily authorized to either enter a Final Judgment of Divorce under N.J.S.A. 2A:34-18 or a Judgment of Divorce from Bed and Board, also referred to as a “limited divorce” (and viewed in some respects as the equivalent of a “legal separation”) under N.J.S.A. 2A: 34-3. The granting of a Bed and Board divorce does not prejudice either party from thereafter applying to the court for a conversion of said divorce into a divorce from the bonds of matrimony, which application shall be granted as a matter of right. However, before any such conversion, said statute allows for the parties to be able to apply for a revocation or suspension of a Judgment of Divorce from Bed and Board in the case of their reconciliation. There is no corresponding statutory authorization where a final (or “absolute”) Judgment of Divorce from the bonds of matrimony has been entered.
In the absence of such statutory authorization, do our Rules of Court afford the courts of New Jersey the power to vacate a Final Judgment of Divorce on the grounds of reconciliation? Applications to vacate or set aside a “Final Judgment” are governed by court Rule 4:50-1, which set forth the following reasons upon which such relief may be granted:
a. Mistake, inadvertence, surprise or excusable neglect;
b. Newly discovered evidence which would probably alter the Judgment or Order, and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49;
c. Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
d. The Judgment or Order is void;
e. The Judgment or Order has been satisfied, released or discharged, or a prior Judgment or Order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the Judgment or Order should have prospective application; or
f. Any other reason justifying relief from the operation of the Judgment or Order.
These reasons are similar to those referenced by the New Hampshire Supreme Court in its opinion. A subsequent “reconciliation” of the parties is not among those reasons. However, does this end the inquiry? A subsequent reconciliation would not appear to invoke relief under subsections (b), (c) and (d). The same would appear true for subsection (a) involving claims of mistake, inadvertence, surprise or excusable neglect occurring during the underlying litigation itself leading to the entry of the challenged Judgment, not circumstances arising subsequent thereto. What about the portion of subsections (e) where it is no longer equitable that the Judgment or Order should have prospective application? What about the catch-all subsection (f) “any other reason justifying relief from the operation of the Judgment or Order”? Besides demonstrating that enforcement of the Judgment would be unjust, oppressive or inequitable, truly “exceptional circumstances” must be shown before courts would even consider relief under these sections, which are to be granted “sparingly”. Remember, we are not talking about a challenge to the underlying terms and provisions of a Divorce Judgment or incorporated Property Settlement Agreement (i.e custody, support, equitable distribution) or even as to be initial granting of the divorce itself, but rather a subsequent desire on the part of the parties’ of no longer wanting to be divorced and to resume their previously terminated marriage. Would this constitute “exceptional circumstances”? Would continued enforcement of the previously entered (and presumably originally unchallenged) divorce decree be “unjust, oppressive or inequitable”? Couldn’t the parties simply remarry if they no longer wished to be divorced? While there are no published New Jersey cases specifically addressing this issue the simplistic answer to these questions would seem to be no, no and yes respectively. However, particularly in light of recent changes in the divorce laws, these issues may not be so cut and dried.
The Petitioners in the New Hampshire case had asserted that it would be inequitable to deny them the opportunity to restore their marriage because “they have social security rights, pension rights, rights of inheritance and other financial interests that will be adversely affected if the continuity of their long term marriage is disrupted by a divorce that is no longer necessary”. Although the Court did not specifically address these assertions in making its decision, the amicus curiae appointed by the Court to defend the Judgment noted that the extent of any “adverse impacts” were self-imposed, and there was nothing in the record which would suggest that getting re-married would not be an adequate remedy.
There have been several cases in New Jersey which have considered the impact of a parties’ subsequent reconciliation on financial rights and claims, although not in the context of vacating a prior divorce. In Weiner v. Weiner, 120 N.J. Super. 36 (Ch. Div. 1972), aff’d o.b. 126 N.J. Super 155 (App. Div. 1974), cert. denied, 65 N.J. 284 (1974), the parties divorced, incorporating a Separation Agreement which included a provision for support to the wife. The parties subsequently reconciled without remarriage and a few years later separated again. The question was whether or not the parties’ reconciliation had abrogated the support obligations contained in their prior divorce judgment. The court noted that while the general rule was that reconciliation before divorce abrogated the executory provisions (like support) contained in a Separation Agreement, as would their subsequent remarriage, post-divorce unmarried cohabitation alone did not abrogate such obligations, expressing the view that doing so would put the stamp of approval upon a “meretricious relationship”. Would the same view resonate today? Curiously, 17 years later in the case of Wajda v. Wajda, 239 N.J. Super 248 (Ch. Div. 1989), the court declined to award the ex-wife a share of the ex-husband’s pension benefits accrued during their almost 10 year reconciliation after divorce, at which time she had “waived” her claims to same, holding that their cohabitation did not give rise to either a statutory remedy of equitable distribution, which only applied to rights accrued during “marriage”, not to equitable remedies. However, in follow up to the dicta in Weiner, the Appellate Division in Capuzzo v. Capuzzo, 244 N.J. Super 317 (App. Div. 1990) was confronted with a case in which the parties initially divorced in 1985, with a Stipulation of Settlement between them incorporated into their divorce judgment. The parties remarried in 1986, and refiled for divorce shortly thereafter. The trial court declined to follow the provisions of the parties’ prior 1985 Stipulation, which had never been complied with, instead treating the marriage as a continuing one and dealt with the incidents of the divorce accordingly. The Appellate Division affirmed, in part based upon the conclusion expressed by the court in Weiner, that remarriage after divorce would restore the previous marital circumstances, and that in this particular set of circumstances, the parties’ financial relationship and economic partnership was constant, unaffected by their Agreement, divorce, reconciliation or remarriage. It is curious to also note that the Appellate Division referred to R. 4:50-1(f) as further possible support for a court’s authority to re-open the executory provisions of a prior Judgment. While this case involved the impact upon a subsequent remarriage upon a prior Divorce Judgment/Agreement, could the same argument be made in support of a motion to vacate? Or would remarriage rather than moving to vacate, provide an “adequate remedy” as the New Hampshire amicus suggested?
Remarriage would presumably resume spousal inheritance rights as well as insurance and pension rights as may be accrue in the future. Would vacating a prior divorce judgment alone have any impact upon restoring such spousal rights which may have ceased as a matter of law upon termination of the previous marriage? Were such spousal or property rights already addressed and distributed under the prior divorce? If so, what rights would be adversely affected if the divorce was not vacated? Wouldn’t remarriage start the accrual of new rights? If provisions under a prior divorce had not been complied with, or previously accrued rights had not been addressed, wouldn’t the rationale under Capuzzo apply if there had been a continuum in the relationship as remarriage? A wild card which may come to bear on these issues is the recent amendments to the alimony statute, and specifically the presumptive tie between the length of alimony and the length of marriage. Assume an example where the parties divorced after 19 years of marriage; the duration of alimony would not exceed that length except in exceptional circumstances. Would a subsequent remarriage extinguish the prior alimony obligation and cause the durational clock to start anew, or might it give rise to an argument of a Capuzzo situation, treating the marriage as a continuing one so as to tack on the time of the prior marriage to extend it into a claim for “open durational” alimony? This would obviously depend upon the circumstances of the case and the parties’ relationship post-first divorce. Otherwise, would this give rise to a claim for “exceptional circumstances” under the statute? Would moving to vacate the prior divorce be a better option in this scenario rather than taking one’s chances on such discretionary arguments later on? Realistically, would the payor spouse even join in this option?
Where the duration of the marriage plays a more significant role in the determination of substantive rights in divorce, the greater the likelihood these sorts of issues will be raised. How they will be addressed by the courts in New Jersey remains to be determined.