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Failure in Duty of Good Faith and Fair Dealing under NJ Family Law

What happens when a party to a divorce proceeding, before, during or after divorce, disposes of personal property belonging to the other party?  The party disposing of the personal property will be penalized in some fashion.  This question came to the forefront in the Superior Court, Ocean County before the Hon. L.R. Jones, a question that comes up frequently in NJ Family Law.

In this case, C.S. v. B.S., the parties made an agreement, later ordered by the court, to share the photos and videos taken during the 25 year marriage, all of which were in the possession of the wife. The wife provided the husband with only a few photos of his boyhood, one of which was ripped into pieces. Before bringing a court action, the husband attempted to get the wife to comply with the Order to share marital photos, and she responded by saying that she had gotten rid of all photos  because she did not want to be reminded of him. The photos and videos were kept in a big footlocker and various boxes at the former marital home, so they were nowhere the wife would have been regularly seeing them.

These photos and videos disposed of by the wife included their child’s birth, weddings, graduations, family celebrations and various family parties and gatherings, of great sentimental value. The husband brought this action seeking a remedy for the wife’s failure to comply with the court’s order to share the marital photos and videos and her, in fact, having disposed of it all.

At the hearing, the wife made various claims. One claim was that she did give the husband photographs for the marriage, after her unilaterally deciding what was his, and that she then got rid of “her” share of the photos and videos. She stated that she did this before the parties were divorced which lacked credibility in that the parties’ settlement agreement included a paragraph about sharing the photos. That would have been unnecessary were there no photos or videos to share. The court did not believe the wife’s testimony and ultimately awarded the husband $5,000 as damages for the loss of personal property with nothing but sentimental value. Keep in mind that this was not the loss of a few photographs or videos over 25 years, but the complete destruction of all documented memories and important events of the marriage. Everything lost, at the sole discretion of the wife’s animosity toward the husband. NJ Family Law simply does not tolerate such conduct.

The court discusses the need for the existing duty of parties to a divorce action to deal with each other in good faith, and to deal with each other fairly. Without this duty, there would be no way to ensure “fairness and equity in the dissolution of marriages.”  The courts do not want one party to put the other in a disadvantageous position by failing to deal in good faith and with fairness to each other, whatever emotions and animosity there is between the divorcing parties.

The court goes through the three possible scenarios of how these photos and videos were disposed of, because it was not apparent from the testimony as the wife was inconsistent and hesitant in her testimony:

  • The wife may have disposed of the photos/videos after entry into the settlement agreement between the parties, thus violating the agreement.
  • The second option discussed by the court is disposal prior to entering into the agreement. This option presents both the failure to act in good faith in maintaining marital property during a divorce proceeding and her actions in negotiating and signing the agreement shows misrepresentation because she could not possibly honor the photo/video provision of the agreement.
  • The third option discussed by the court is the interesting perspective that the photos/videos were not destroyed at all and remain under the control of the wife. In this case, she has violated the terms of the settlement agreement and court order, and has interfered with the husband legal rights to a portion of the property.

Possible Remedies for Wife’s Breaching Husband’s Rights Under New Jersey Family Law

  • Specific Performance: A mechanism by which a party has the court force the other party to do what is promised. Here, if there are no photos/videos to provide, specific performance cannot occur.
  • Compensatory Damages: Payment for the cost or value of the personal property lost. Here, personal photos and videos have no real market or replacement value, so this method will neither compensate the husband for his loss, or penalize the wife for her wrongful conduct.
  • Sanction: Financial penalty for wrongdoing of various sorts.
  • No Award of Compensation: No compensation to the husband, which is not a viable remedy because it could encourage violations of the duty of good faith and fair dealing, and the husband has experienced a loss of significance to him.

Because equity, the principles of fairness, will not suffer a wrong without a remedy, the court fashions a remedy in an effort to compensate the husband for his loss.  The court awards $5,000 to the husband, stating that it does not matter whether the amount is deemed compensatory damages or financial sanction, or a hybrid of both. If you have any questions about NJ Family Law, call the Law Offices of Peter Van Aulen at (201) 845-7400.




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