In a decision published yesterday, a New Jersey judge has ruled that a party to a divorce case cannot avoid the need for their personal participation by having their agent under Power of Attorney appear on their behalf. The case of Marisco v. Marisco, Chancery Div.-Ocean Cy., docket no. FM-15-1152-13-N (Jones, L. R., J.S.C.) involved a divorce action between a husband and wife in their 80’s. The husband (defendant) had designated his daughter as his Agent under Power of Attorney, and it was she who signed the Certification to his Answer and Counterclaim. The plaintiff objected, and the court agreed with the plaintiff.
The decision is an interesting review of the limits on the authority of a POA and the general requirements for personal participation in divorce actions by the parties to a divorce, including the potential need for personal testimony at all proceedings. The Judge ruled that unless there has been a finding that a party is “incompetent” (incapacitated) or that a legal guardian needs to be appointed, the POA can’t testify on the party’s behalf or attest to facts by signing his certifications (unless the other party consents).
One of the reasons discussed by the Judge is that there are rules limiting the admissibility of hearsay in court proceedings, and a witness (such as the person who is the POA) can only testify to matters that are within his or her personal knowledge. If s/he were to testify about things known only to the party, it could be inadmissible hearsay. This would of course deprive the court of necessary facts, would increase the unreliability of the testimony, and would impede the ability of the other party to cross-examine.
On the other hand, if a legal guardian has already been appointed for a person who is now a party to a divorce, the guardian can actually “stand in the shoes of” the incapacitated party. See Kronberg v. Kronberg, 263 N.J. Super. 632 (Ch. Div. 1993) and Kingsdorf v Kingsdorf, 351 N.J. Super. 144 (App. Div. 2002). http://www.leagle.com/decision/1993895263NJSuper632_1840.xml/KRONBERG%20v.%20KRONBERG and https://www.courtlistener.com/njsuperctappdiv/8T1R/kingsdorf-v-kingsdorf/
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