Divorce and Custody Agreements Have A Much Better Chance of Being Upheld When Both Sides Have Their Own Lawyer. A True Story.

Divorce and Custody Agreements Have A Much Better Chance of Being Upheld When Both Sides Have Their Own Lawyer. A True Story.

New Jersey Family Courts generally favor agreements between spouses and/or parents that resolve


divorce issues and child custody matters. In fact, my vast experience as a family law attorney dictates that settlements are almost always favored as opposed to having a trial or a plenary hearing. However, when a person signs a document (before hiring a lawyer) that outlines certain agreements and clauses in connection with their New Jersey divorce, they expect the Agreement to "hold up" in Court. Unfortunately, that is not always the case. As the attorneys at Law Offices of Edward R. Weinstein would all attest to, I could not stress enough how important it is for both parties to be represented by an attorney when entering into any type of agreement. All told, a New Jersey Family Court will give much more deference to an Agreement signed with both parties represented by a lawyer of their own choosing.

Having an attorney really can save someone from a lot trouble down the road and can help ensure that any agreement entered is will be upheld by the Superior Court of New Jersey. While it is always a hard row to hoe, a Family Court will certainly hear an application to set aside or vacate an agreement regarding child custody or marital finances reached by way of consent on the basis of strong public policy that requires fairness. These types of cases are of course very fact sensitive because the Court must look to the intention of the parties. Prior to vacating an agreement the Court will require proof of fraud, coercion, or other compelling circumstances by "clear and convincing evidence". Usually, the party seeking to avoid an agreement bears the burden of proof. If the Court finds that the agreement is not valid they may offer three remedies; 1) avoidance of the provisions 2) reformation of the provisions or 3) cancelation of the contract.

Most recently my law firm represented a nice gentleman, who I shall refer to as Bob. Bob and his Wife of 30 years were experiencing marital difficulties, but it appeared to Bob that they would be able to manage those difficulties amicably. Bob and his Wife drafted a settlement agreement which outlined the settlement terms they wished to be incorporated into their divorce. Neither Bob nor his Wife spoke English. As such, the agreement was written in their native language and translated to English. Bob's Wife requested several changes and all of the changes she requested were added to the agreement. After negotiating the agreement and making several changes both parties signed the same in front of a notary. Further, the agreement was negotiated between the parties' children. Bob and his Wife did not discuss the terms between themselves. The parties lived by the terms of the agreement for five months when Bob filed for divorce. Bob's Wife retained an attorney and decided that she no longer wished to follow the agreement and that the same was unfair to her. Bob was understandably upset. Here he thought everything was taken care of, and now he was dealing with a divorce from scratch.

Under Bob's agreement, the parties agreed to the division of their property and support to be paid to his Wife. The main issue had to do with division of the parties' residences. The parties technically owned two properties during the marriage. Property "A" was the martial residence. Property "B" was a property that was purchased during the marriage in Bob's name alone. While the property was purchased during the marriage and in Bob's name, the parties intended this property to be gifted to their daughter. Prior to the filing for divorce the property was in fact transferred to the daughter's name. The fact that the property was to remain the daughter's was memorialized in the agreement the parties signed.

Once Bob filed for divorce, his Wife claimed that she had no knowledge of the fact that Bob transferred property "B" to their daughter and that the same was done without her knowledge. She also claimed she did not receive fair equitable distribution of the assets (although she was collecting money from Bob each month as payment under the agreement) and that she was forced to sign the agreement against her will. Although there was proof that Wife knew about the transfer of property "B" prior to the divorce, the Court was not completely convinced that said transfer prior to a divorce proceeding starting or that the agreement in general was executed in good faith. So what will a Court look at when deciding whether to enforce an agreement or not?

It is not easy to set aside an agreement, but that is not to say that the same cannot be done. When looking at whether an agreement is enforceable the Court will look at three broad factors. The same are 1) the legality of the agreement; 2) the conscionability (i.e., is the agreement correct, reasonable or unfairly extreme) of the agreement; and 3) whether the agreement goes against public policy. Generally speaking matrimonial agreements are considered binding and the Court has the authority to order specific performance under said agreements. Agreements between a Husband and Wife that are executed voluntarily and for the purpose of settling matrimonial issues are enforceable so long as they are fair, just and equitable. While the Court will usually make no determination of the fairness of an agreement at the time it is entered, they will address the issue when enforcement of an agreement is sought. It should be noted that unequal bargaining power is one factor in finding a breach of good faith and setting aside an agreement. Further, the Courts have found that while the validity of an agreement does not rise or fall solely on the fact that one or both of the parties are represented by an attorney, the lack of representation brings a possible question of improper conduct. Thus, it is extremely important that both parties always be represented by an attorney.

Bob's case is still in progress. However had he insisted that both he and his Wife be represented by counsel at the time they signed his agreement, he would certainly have much less of a headache on his hands and would probably be divorced, just as he thought he would be. In other words, both husband and wife would be bound to the terms of the agreement.

Great examples of the foregoing are prenuptial agreements. Over the past 20 years, I have won every case in which I have every sought to have a "Prenup" vacated by the Superior Court of New Jersey when only one (or neither spouse) was represented by an attorney. However, when both parties' are both represented by their own family law attorneys, respectively, the likelihood of the prenuptial agreement being upheld in court is radically enhanced.

If you and your spouse (or other parent) agree on the terms of a settlement, please call our office to schedule a consultation so that we can prepare a legally binding document that be upheld in Court. Do not make the mistake of thinking that if you sign your agreement in front of notary that it will be enough to stand up in Court. Protect yourself, your children and your property by contacting our law firm for help, before it is too late.


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