In a published decision, Ocean County Superior Court Judge Lawrence Jones declared that a spouse involved in a divorce action must personally participate in the proceeding where the spouse is found to be mentally competent.
The trial court’s decision in Marsico v. Marsico limits the extent to which a designated Power of Attorney (POA) or any other party can be involved in a divorce proceeding. In this divorce action, the Husband designated his adult daughter from another marriage, as his Power of Attorney. With the Power of Attorney, the daughter signed certifications and attended court appearances on husband’s behalf. The Wife in the proceeding objected to this procedure by claiming that husband, although in his mid-80’s, was not found to be incompetent to understand and participate in the divorce proceedings. The trial court held:
in the realm of matrimonial and family court litigation, the entire fact-finding procedure is heavily dependent upon the testimony of the parties themselves, and involves a focus on otherwise private issues, dealings and communications between spouses within the family structure. Given the multiple layers of written and oral testimony which a divorce litigant may need to supply during the course of a case, a participating party cannot be permitted to sidestep his or her testimonial obligations by simply deputizing another person as POA to testify on his or her behalf. Such a process could allow a party who wishes to avoid disclosure of certain information, or personal cross-examination and judicial scrutiny of a relevant issue, to grant POA status to a third person who may have little or no direct personal knowledge of the information at the heart of the inquiry.
The trial court acknowledged that in certain circumstances where a spouse is mentally or physically unable to participate in his or her divorce proceedings that the judicial system is flexible enough to accommodate such a situation. In the instant matter, however, the fact that a party is viewed as elderly will not alone be sufficient to determine the party incompetent. The trial court noted that there are many octogenarians who “lead extraordinarily active lives.”
This case will have an impact on future divorce proceedings between older couples as there has been an increase in couples over 60 pursuing divorces in New Jersey and nationwide.