Risa A. Kleiner, Esq.

August 13, 2009

In a published opinion, The Honorable Robert J. Mega, sitting in the Chancery Division, Family Part in Union County, held that New Jersey courts retain “continuing exclusive jurisdiction” to modify a spousal support order that was established in New Jersey.   The unusual issue decided in Pek v. Prots, FM-20-00286-04, arose because the parties parties had both moved out of New Jersey after the divorce.  Their Judgment of Divorce provided that Ohio should exercise all future jurisdiction of issues arising after the divorce.

Despite their agreement — and the fact that they no longer reside in New Jersey — the court found that Federal Law (specifically the Uniform Interstate Family Support Act (UIFSA), overrides their contractual selection of jurisdiction as to the issue of modification of alimony, but not child support.  UIFSA is codified in New Jersey at N.J.S.A. 2A:4-30.65 to 123. 

The issue arose after plaintiff filed a motion to modify child support and alimony in Ohio where his former wife and the children reside.  The Ohio court agreed to exercise jurisdiction over the child support issue, but not over spousal support.  The New Jersey court agreed, holding that, although forum selection clauses are generally enforceable in this State, enforcing the parties’ choice of jurisdiction over alimony could avoid potential confusion among jurisdictions which might result in a litigant having no forum whatsoever in which to litigate his claim.

Lesson to be learned:  Since a significant amount of litigation involves post-judgment issues, it is critical that parties be well-informed of the law before entering into a Settlement Agreement which is to be incorporated into their Judgment of Divorce.   

More important lesson to be learned.  If the parties had sought mediation to resolve the modification requests made by plaintiff in this case, the time and expense of duplicate litigation in NJ and Ohio could have been avoided.