Enforcement of litigant’s rights issues

Enforcement of litigant’s rights issues

Choosing the right lawyer, and the consequences of choosing the wrong lawyer 

It is often said that most cheap lawyers are not good, and most good lawyers are not cheap. What is the secret to finding a great lawyer? The answer is simple, a great lawyer is the one who can thoroughly consider and delineate all issues in a case, in a way that serves the client practically, and often, financially. 

Most people do not realize the mistakes an attorney can make. Many times, large mistakes are discovered years later, like, for example, improperly vetting a Marital Settlement Agreement (“MSA”). An MSA becomes binding once incorporated in a Final Judgment of Divorce, and acts as a court order. 

The grounds for modifying an MSA are difficult, as it is the public policy of the State of New Jersey to bind parties’ to their settlement agreements and to not disturb a parties’ settlement agreement. In practice, parties experience with flawed or rushed MSAs may face “post-judgment issues.” 

A post-judgment issue occurs when there is a problem with an MSA. Problems may range from discovering a material asset or liability from the marital estate was not disclosed, learning an asset is encumbered with a large amount of undisclosed debt, or even enforcing a clause of an MSA, like an alimony payment for example. Motions to enforce or modify equitable distribution involve the exercise of judicial discretion. See Whitfield v. Whitfield, 373 N.J. Super. 573, 575 (App. Div. 2004).

An exercise of discretion requires “a conscientious judgment” based on “the law and the particular circumstances of the case before the court.” Higgins v. Polk, 14 N.J. 490, 493 (1954). And an explanation of the factual and legal bases for discretionary determinations made on such motions is expected. R. 1:7-4(a). There are many remedies when enforcing a judgment, including counsel fees. See N.J.S.A. 2A:34-23; R. 4:24-9 (b)-(d); R. 5:3-5(c); Mani v. Mani, 183 N.J. 70, 93-95 (2005). 

To conclude, while it is often true that a good attorney may be expensive, it may very well be worth the money to avoid costly post-judgment issues. Even if you do have a post-judgment issues, if you have a strong enforcement of litigants’ rights case, counsel fees may be awarded to make you whole. 

If you, or someone you know, has a family law case and/or a post-judgment issue, please do not hesitate to contact A.Brown Esq. LLC for a free consultation. 

Written by Adam C. Brown, Esq.