Monthly Archives: February 2011

WEDDING BELL BLUES – Who Gets To Keep The Engagement Ring?

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Generally speaking, in New Jersey (and in an increasing number of other states), when an engagement is broken, the ring goes back to the man. It does not make any difference who broke the engagement, or whose fault it was. The engagement ring (un

like other gifts that may be given) is considered to be a conditional gift. If the pre-condition does not occur – in other words, if the marriage does not take place -  the gift is voided and returned to the original owner.

But there may be exceptions. For example, in many states, if a man gives a gift to a woman who is married, he cannot later claim that it was an engagement gift,  “conditioned on marriage,” and that he has a right to its return if the marriage does not take place. The reason is that if the person giving the gift – the “donor” – knows there is an existing  lawful impediment to his ability to marry the woman (such as the fact that she is already married), he cannot reasonably believe that at the time of the giving of the gift he could expect to actually marry that woman.  It would be a gift given, not in contemplation of marriage, but rather in contemplation of divorce. It would thus be against the public policy that influencing or aiding the breakup of a marriage is not favored.

A situation testing these principles recently was before the court in Bergen County, New Jersey. The man gave the woman a ring, and placed the woman’s name on property that he purchased with his own funds. When the relationship broke down, he claimed that both actions were gifts given in contemplation of marriage, and since the marriage was not going to take place, he was entitled to recission of both actions (return of the ring, and removal of her name from the deed on the property). The woman claimed that they were never engaged, that she was legally married to another at the time of the giving of the gifts, and that the gifts were merely tokens of affection given in consideration of the parties’ long standing relationship.

The judge questioned the wisdom of imposing in all cases a ban on the return of gifts when there is a known impediment to marriage. He noted that although there is a public policy in favor of the preservation of marriage, with the passage of the No Fault Divorce laws, New Jersey  also recognized that there is no benefit to prolonging a failed marriage. He also noted that continuing such a ban could produce unjust results. For example, such an arbitrary ban would bar recovery of a gift even in situations where one party actively made a knowing, intentional, and fraudulent misrepresentation deliberately designed to mislead the other party to believe that divorce was imminent and inevitable so that the parties could soon thereafter marry. The unilateral ban could also allow recovery by an abusive, unmarried donor from an innocent, victimized unmarried recipient who justifiably canceled the parties’ engagement.

Accordingly, the judge allowed the man to have the opportunity to establish whether or not the woman acted fraudulently, and whether this fraud led the man to reasonably believe that she would soon be divorced so that the parties could marry. If he could prove it, he would get back to gifts.

Just as there are rarely absolutes in marriage, there are rarely absolutes in the law.

 

AS SEEN ON TV! You Can’t Really Use Tricks in the Courtroom

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I must admit, I thought this sort of thing happened only on TV!

John Rogers was indicted on charges related to the alleged distribution of narcotics.  He was provided counsel from the Public Defender’s Office.  The

case against John was not airtight – indeed, there were  at least two witnesses available who were willing to testify that that it was John’s brother Ray who has sold the drugs, and that Ray had given his brother’s name and date of birth when arrested. The lawyer must have seen too many courtroom dramas on television, because, rather than provide what might have been a solid defense based on the facts, she hatched a scheme of deception to get an acquittal for her client.

She planned to have Rogers switch clothes with his brother, and then sit in the audience. The brother would sit at the counsel table. They assumed the arresting police officer would take the stand and identify the person at the counsel table as the perpetrator.  Then, perhaps in a melodramatic style reminiscent of Perry Mason, the defense lawyer would arise and point out the faulty identification. All would see that her client was wrongly identified and falsely accused!

Alas, the plan went awry. The prosecutor found out about the plan, and the plan was aborted. To make matters worse, the prosecutor brought out the scheme during cross examination of the defendant to destroy his credibility. When the attorney told the judge that it was her idea, not Rogers’, the judge was incredulous. The jury convicted Rogers.

The story doesn’t end there, though. Rogers sought Post Conviction Relief, asserting that he had been afforded ineffective assistance of counsel due to his attorney’s failure to call the helpful witnesses at trial and also due to her scheme which backfired against him.  The appellate court agreed, finding the attorney’s conduct to be violative of the law and of the attorney’s Rules of Professional Conduct. The prejudice created by the damage to his credibility was so egregious that the appellate court ordered a new trial. The indictment was later dismissed.

But wait, there’s more! Rogers later sued the Public Defender’s Office for damages caused by this ineffective counsel.  When suing a public entity, notice of your intent to sue must be given within a specified time period. The lower courts have ruled that Rogers waited too long. That issue is now before the New Jersey Supreme Court.

Was justice done? Hard to say. Clearly, the lawyer should have known better than to attempt the deception. Just goes to show that those sometimes fantastic stories that we see on television do not often accurately portray the real world of the courtroom or of the law. But you knew that already, didn’t you?

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