The New Jersey Superior Court recently published a case regarding the novel issue of whether a party in a divorce case can designate a surrogate, through a power of attorney, to testify on behalf of that party. A power of attorney is a legal document signed by one person, giving a second person the power to perform specified acts on the first person’s behalf, including conducting legal affairs.
In Marsico v. Marsico, 2013 N.J. Super. LEXIS 210, No. FM-15-1152-13-N (Ch. Div. 2013), the parties were in their eighties when the Plaintiff filed for divorce. The parties had no children together, but the Defendant had an adult daughter from a previous marriage. Defendant executed a power of attorney, authorizing his daughter to conduct his legal affairs. When Plaintiff filed for divorce, Defendant’s daughter, not Defendant himself, signed the necessary legal documents on his behalf. Plaintiff objected to Defendant’s daughter appearing on his behalf in the divorce litigation.
Under New Jersey law, an individual has the power to appoint another to handle their affairs under a power of attorney. N.J.S.A. 46:2B-8.1. The statute, however, does not specify whether this is allowed in a divorce proceeding. The court in this case held that “a competent party cannot designate a surrogate, either through a purported POA or otherwise, to testify in his or her place without the consent of the other party or court order.”
The court found that matrimonial proceedings are particularly dependent on the personalized knowledge of the parties, and thus allowing a third party to testify on behalf of a party may sidestep the disclosure of necessary information. Allowing a third party to testify on behalf of a litigant may complicate the evidence rules against hearsay and prevent valuable cross-examination. The court acknowledged that in a case where a party is mentally unable to act on their own, a guardian ad litem can be appointed to aid that party through the legal proceedings. In addition, if a party cannot proceed due to physical issues, such as illness, other provisions for that party’s testimony can be made, such as taking the testimony by video. Nevertheless, no mental or physical issues were presented in this case, and thus, the court refused to enforce a blanket rule allowing parties to a divorce to appear through a surrogate.
This case is one example of the way in which divorce proceedings can be complicated and confusing. If you are going through a divorce, the best way to make sure your interests are protected, without causing yourself a headache, is to obtain the help of an attorney. The Our Team experienced matrimonial lawyers at Sarno da Costa D’Aniello Maceri LLC can help guide you through your divorce. Call us today at 973-274-5200.
