When couples in New Jersey engage in divorce litigation, one of the many conversations that a client may have with his or her attorney may be about the desire to relocate out of the state of New Jersey. This blog is not intended to provide guidance as to how to overcome the burden of relocating out of the state of New Jersey with children; however, it will focus on a recent decision; namely, Saavedra v. Saavedra, which explains what can occur if relocation ensues and the parties fail to have a Choice of Law Provision in their Marital Settlement Agreement (“MSA”).
In Saavedra v. Saavedra , N.J. Super. App. Div., Plaintiff and Defendant divorced in New Jersey in 2011, with two children. The Marital Settlement Agreement was incorporated into the Judgment of Divorce (“JOD”). After the divorce, Plaintiff moved to California with the children. Defendant followed shortly afterward. Plaintiff registered the JOD in California.
In 2015, Plaintiff filed an application in California to modify custody and child support. The court noted that the parties agreed California would be the correct jurisdiction and California law would govern. The court modified child support on August 24, 2015, by significantly increasing it. In 2017, Plaintiff and Defendant both filed applications before the court in California to modify child support. Plaintiff also requested to extend the duration term to what it had been under the MSA. Under the original MSA, child support was to continue through the children's college, but under the California Child Support Modification Order, duration only lasted until the children were eighteen (18). The court denied Plaintiff's request. Plaintiff then filed a new complaint, again seeking to extend the duration term to what it had been under the MSA. The court denied the request, noting Plaintiff did not appeal the previous decision, but rather chose to file a new complaint as a collateral attack on the Court's ruling.
Plaintiff filed an application in New Jersey for post-disposition relief on July 2, 2018, requesting modification of the California Child Support Order to restore the duration term used in the MSA. The Judge scheduled a case management conference to discuss jurisdiction and held oral argument. The lower court denied Plaintiff's request, finding that since the parties obtained a Modification Order in a California Court and failed to appeal that Order, New Jersey no longer had jurisdiction.
On appeal, the court affirmed the denial, finding that the parties had relocated to California and agreed California would be the proper jurisdiction, with California law controlling. Therefore, the decisions rendered by the California courts were binding. The court noted when all the parties have left the state, New Jersey may not modify a Child Support Order, even though it issued the controlling Order, where the parties have consented that another state can modify the Order.
In order to change jurisdiction from New Jersey, the parties either need to provide their individual consent to have it heard in a jurisdiction that one of the parties is currently residing in or, as in Saavedra v. Saavedra, both parties must live in the jurisdiction. Saavedra informs us that even though parties might have agreed to a certain provision in their Martial Settlement Agreement, that does not always mean that a court in a different jurisdiction will enforce and/or modify provisions that the parties bargained for in their MSA according to New Jersey law, even though the MSA was entered into in New Jersey.
If the parties had a Choice of Law Provision, they could have sought to have their MSA enforced by the California courts; however, the California court would have been bound to uphold New Jersey Law and child support would have been extended until the children were considered to be emancipated under New Jersey law. Given the fact that the parties agreed that California was proper jurisdiction and did not have a Choice of Law Provision, they were bound by California law, even though the MSA was entered into in the state of New Jersey. Although it is not clear what would have happened if Plaintiff filed a Motion for Reconsideration instead of filing a new Complaint, it is likely that the Motion would have been denied, as California law would have likely prevailed over New Jersey law in this specific case.
This decision demonstrates the importance of having a Choice of Law Provision in a Marital Settlement Agreement, as if it is not expressly written in the parties’ MSA, a court in a different state that has proper jurisdiction is not bound to uphold New Jersey law, and parties might be denied relief which was specifically bargained for as a part of their divorce settlement.
Alyssa A. DeFuria