[233 NJSuper Page 147] This divorce case raises questions about a frequently recurring situation which has not previously been addressed by our courts. What is the effect of a reconciliation upon a property settlement agreement previously entered into at the time of a separation? For instance, does the reconciliation result in the automatic abrogation of the agreement?
The parties married on May 23, 1981 and on August 25, 1982 the husband and his father purchased, in their joint names only, the marital home for $55,000. The father contributed the entire $10,000 cash deposit and they obtained a $45,000 mortgage loan. The husband testified that this was a gift to him by his father because he had previously paid for the college education of a brother. The wife was aware of this transaction and, indeed, attended the title closing. These parties lived in the home from the time it was purchased until their separation on March 31, 1985 when the wife and their son, who was born February 1, 1984, moved out. A property settlement agreement was signed on July 25, 1985 which required the wife to convey "any interest which she had in the house to the husband for consideration of the payment by the husband to the wife of $5,000." She signed the deed conveying her entire interest in the marital home on August 22, 1985 and received cash and a mortgage for the unpaid portion of the $5,000 which was paid in full on April 28, 1986.
The very next month, May 1986, the husband was involved in an automobile accident and sustained serious life threatening injuries. As the result of subsequent events they decided to resume living together and in August 1986 the wife and son returned to the marital home. They did not decide or even discuss what effect, if any, the reconciliation would have upon the property settlement agreement. No efforts were made to set aside the deed conveying the wife's interest in the marital home and the husband continued to pay to his wife $40 a week for child support as was required by the property settlement agreement. They resumed conjugal relations and adopted a living arrangement whereby the husband paid all expenses for the maintenance of the home (which was in his sole name) and the wife paid for the costs of food, household incidentals and clothing for her and the child.
They separated again in August 1988 and this divorce suit followed. The wife testified that during the two-year reconciliation they had a normal husband-wife relationship and held
themselves out to the world as a married couple. Consequently, she argues that, as a matter of law, the property settlement agreement should be deemed to have been abrogated as a result of the reconciliation. On the other hand, the husband asserts that there never was a reconciliation but only a "platonic" relationship in which they lived together as friends for their mutual benefit and they never reconciled. He contends, moreover, that even if a reconciliation occurred it should have no effect upon the validity of a property settlement agreement, unless the parties expressly agreed otherwise, which did not occur here.
What constitutes a reconciliation? The primary purpose of the court is to preserve the marriage and, if there has been a separation, to encourage a reconciliation, which we appreciate will not come easily because of the bitterness and harsh accusations that frequently accompany a separation. Spouses need time apart from each other to ponder whether they wish to remain married and to glean greater insight into the character and motivations of the other before they can forgive and forget. Not only does this take time to accomplish but it also often requires a "trial reconciliation" before they can agree to permanently resume the marriage in all its aspects. To encourage a reconciliation and the resumption of the marriage it is important that we not impose legal consequences which could discourage the parties from attempting a reconciliation out of fear that an unsuccessful reconciliation effort could result in adverse legal consequences. For these reasons we believe that the preferable rule is to hold that a reconciliation should not be deemed to have occurred until the parties have successfully completed the exploratory stage of a reconciliation and have agreed upon a true and genuine reconciliation, that is to say, when the parties have resolved their major matrimonial differences and agree to permanently resume their former relationship as husband and wife.
Obviously what constitutes a reconciliation is not susceptible to a simple definition and generally depends upon the facts. Thus, it has been held that two isolated acts of sexual intercourse only amounts to an "attempt" to reconcile and does not constitute a reconciliation, Cooke v. Cooke, 34 N.C.App. 124, 237 S.E. 2d 323 (1977); nor does a ten-day "trial reconciliation" even though it occurred in the former marital home. Camp v. Camp, 75 N.C.App. 498, 331 S.E. 2d 163 (1985). On the other hand, Matter of Estate of Adamee, 291 N.C. 386, 230 S.E. 2d 541, 546 (1976) held that when the parties resumed living with each other in the marital residence for eight months they are deemed "as a matter of law" to have reconciled whether or not they engaged in conjugal relations. From the few reported cases dealing with this issue the general rule appears to be that a reconciliation does not exist until the parties reside with each other for a sufficient length of time to permit the trier of fact to conclude that the parties resolved their major differences and agreed to permanently resume their marital relationship. In other words, the parties must have passed the "trial period" or "attempt to reconcile" stage. We are satisfied that the proofs in this case wherein the parties resided in the former marital home with their child for a period of two years clearly established that the parties had reconciled.
We must next determine what effect, if any, does the reconciliation have upon a property settlement agreement entered into at or about the time of the separation. Earlier cases generally held that reconciliation had no effect on the validity of a property settlement agreement on the theory that:
the promise to resume cohabitation is not, without more, even legal consideration. Unless the wife had legal justification for living separate and apart from her husband, she was under legal duty to resume cohabitation with him, notwithstanding the separation agreement, whenever he should request it.
In Hollander, 123 N.J. Eq. 52, 59 (Prerog.Ct.1938)]. However, that archaic philosophy is no longer followed and the modern view is that the executory provisions of a property settlement agreement are ...