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Bornstein v. Bornstein

August 24, 2007

SHARON BORNSTEIN, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
ARTHUR BORNSTEIN, DEFENDANT-APPELLANT/ CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FM-13-1106-03A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 14, 2007

Before Judges Sabatino and Baxter.

Each represented by counsel, appellant Arthur Bornstein ("ex-husband") and respondent Sharon Bornstein ("ex-wife") appeared before a Family Part judge in November 2003 and entered into a Final Judgment of Divorce ("FJD"). The FJD incorporated a detailed Inter-spousal Agreement, which equitably divided the spouses' property and contained mutual waivers of alimony. More than two years later, in December 2005, the ex-husband filed a motion under R. 4:50-1, attempting to set aside the terms of the divorce. The Family Part denied that application, a disposition that we now affirm.

The parties were married in August 1993. They had no children. At the time of the divorce proceedings, the ex-wife was earning approximately $65,000 annually. The ex-husband, although licensed as a real estate agent, was not regularly employed. Prior to the marriage, in 1978, the ex-husband had been involved in an accident that caused him permanent cognitive disabilities, and which entitled him to Social Security Disability ("SSD") payments. When the parties divorced, the ex- husband was receiving approximately $11,000 in SSD per year.

The Inter-spousal Agreement, which was generated by the office of the ex-husband's counsel, consisted of twelve pages. It contained extensive negotiated terms concerning the disposition of the parties' real and personal property; their debts for utilities and other household expenses; various payment obligations and credits, insurance, retirement and pension funds; and other matters. Among other things, the parties agreed that the ex-wife would remit $35,000 to the ex- husband in equitable distribution. That lump sum was payable out of the net proceeds from the sale of the marital residence, proceeds which otherwise were essentially divided equally. The parties also specifically agreed that "[g]iven the[ir] present circumstances and [the] distribution of monies [in equitable distribution]," each of them "waive[d] any claim which he or she may have against the other for alimony, maintenance and support . . . ." That mutual waiver was punctuated by a separate recital in the agreement that "[n]either party under any circumstances, ordinary or extraordinary, shall hereafter seek or require from the other any alimony, maintenance, support or similar payment." Both parties signed the agreement, notarized by their respective lawyers.

When both parties appeared before the Family Part judge with their counsel on November 20, 1993, to have the terms of their divorce ratified and placed on the record, the judge took pains to assure that the parties understood the negotiated agreement and mutually acknowledged it as both voluntary and fair. In particular, the judge asked the parties the following questions and received the following sworn answers:

THE COURT: All right. I have before me this document marked J-1, and it's entitled Inter-spousal Agreement. It's a fairly lengthy document, with a number of exhibits attached. Have you both had the opportunity to read it?

MRS. BORNSTEIN: Yes. MR. BORNSTEIN: Yes.

THE COURT: Did you read it carefully?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Do you understand each and every one of the terms and conditions that it contains?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Is this your full and complete agreement?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Have there been any other promises or inducements that have been made to you, other than what is contained in the written agreement?

MRS. BORNSTEIN: No.

MR. BORNSTEIN: No.

THE COURT: Do you understand that if there are any other promises, those are not going to be considered legally enforceable, only what's here, correct?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: Yes.

THE COURT: Now, before you signed and initialed the document, did you review it carefully with your attorney?

MRS. BORNSTEIN: Yes.

MR. BORNSTEIN: ...


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