Power of Attorney Cannot be used in a Divorce

Ocean County Matrimonial Judge Lawrence R. Jones ruled that a person may not respond to a divorce complaint by way of a Power of Attorney (POA). In the case of Marsico v. Marsico, Judge Jones found that when a person has not been determined incompetent, they cannot respond to a divorce complaint by way of a POA. The rationale behind this ruling is that the personal testimony of the party involved in matrimonial litigation is crucial to the fact finding procedure when deciding a case. By allowing a POA, a person could avoid testimony and disclosing key information relating to their divorce proceeding.

Judge Jones noted that if a person is incompetent, they can make the appropriate filings with the surrogate and the court can declare them incompetent and a legal guardian can be appointed. If a legal guardian is appointed, that person can act on their behalf in the divorce proceedings. Additionally, he noted that a person can also make an application to the court to have a guardian ad litem appointed to act in their best interest during the litigation if they need help making decisions.

This is the first reported decision discussing the use of a POA in a matrimonial context and should be used as guidance in future cases.