After Mediation, What Does A Memorandum of Understanding Look Like?
Over the past few years as a divorce attorney, due to a still struggling economy that has affected New Jersey along with the nation, I see many folks going to mediation to resolve there issues. Many times (but not always) the mediator is also a divorce lawyer who helps individuals with issues such as custody, parenting time and child support. Issues such as alimony (which New Jersey recently “modernized”) and equitable distribution of both assets and debts shall also be addressed. Ultimately, if there is a potential settlement, the mediator produces a Memorandum of Understanding that illustrates the structure of “the deal.” They are then instructed to provide a copy to their respective attorneys to review. If everything is in order, the lawyers shall jointly prepare a Property (or Matrimonial) Settlement Agreement for the parties review and finalization.
My office stands ready to review your Memorandum of Understanding. Below, please find a draft (and hypothetical) example that my office has utilized over the years:
MEMORANDUM OF UNDERSTANDING
THIS AGREEMENT , entered on this _________ day of ____________, 2015 by and between
JOHN ADAMS , residing at 28 Maple Lane, New Jersey (hereinafter called “Husband”), and
DENISE ADAMS , residing at 44 Green Street, New Jersey (hereinafter called “Wife”).
WHEREAS, the parties are Husband and Wife and were married on November 6, 2004 in a religious ceremony in Bermuda.
WHEREAS , there was one (1) child born on the marriage, namely Eric Adams, born on July 28, 2006.
WHEREAS , the parties are hereby adjusting and settling their individual and joint property rights and the support and maintenance affecting them and the child and have resolved all issues attendant to the marriage; and,
WHEREAS , they desire to make provisions for resolution of all outstanding economic issues between the parties including, but not limited to, spousal support, distribution of assets, counsel and expert fees; and
WHEREAS, the parties have entered this agreement via the process of MEDIATION with Shelly Roth, Esquire wherein the terms of their Agreement have been set forth in this Memorandum of Understanding to be reviewed by independent counsel of their choosing and incorporated into a Property Settlement Agreement; and
WHEREAS , both parties fully understand all of the provisions of this Agreement and believe them to be fair, just, equitable and reasonable and accordingly, accept such provisions freely and voluntarily without any form of duress or coercion; and
NOW, THEREFORE, for and in consideration of the covenants, promises and agreements hereinafter set forth, it is agreed by and between the parties hereto as follows:
INTRDUCTION AND PRELIMINARY AGREEMENTS
THE LANGUAGE HEREIN IS BOILERPLATE THAT IS INCLUDED IN MOST PROPERTY SETTLEMENT AGREEMENTS. THE MAJORITY OF THE LANGUAGE HEREIN IS INTENDED TO BE INFORMATIVE AND UTILIZED BY YOUR ATTORNEYS AS PART OF YOUR FINAL PROPERTY SETTLEMENT AGREEMENT.
The parties do hereby agree that it shall be lawful and proper to live separate and apart from each other and to reside from time to time at such place or places as they respectfully deem fit, free from any control, restraint or interference, direct or indirect, by the other party. Neither party shall molest the other or compel or endeavor to compel the other to cohabit or dwell with him or her by any legal or other proceedings. The foregoing provisions shall not be taken to be an admission on the part of either Husband or Wife of the lawfulness or unlawfulness of the causes leading to their living separate and apart.
2. FINANCIAL AND ASSET DISCLOSURE.
Each party acknowledges that they have read this Agreement in its entirety. Each party further acknowledges that they are satisfied with the level of knowledge that they have regarding the income and property of the other. The parties warrant and represent that they have made full disclosure of all assets prior to the execution of this Agreement, and the parties acknowledge that by entering into this agreement they are voluntarily waiving their right to utilize additional pre-trial discovery such as interrogatories, depositions, accountants and other experts, in order to verify and confirm the nature and extent of their respective assets and liabilities. Each party further acknowledges that they have been advised that they have the absolute right to further discovery including depositions of the parties and witnesses, issuances of subpoena to banks, financial institutions and others, and further responses to the Request for Production of Documents and Interrogatories. Each party understands and acknowledges that in addition to the above discovery techniques available, there are other modes of discovery available to ascertain the income and property of the other. Nevertheless, each party waives the right to conduct such additional discovery and acknowledges that they understand they have the right to obtain expert assistance to determine the value and existence of assets and income.
The parties further acknowledge that by entering into this Agreement, they are satisfied with the disclosures that have been made and are further satisfied that this Agreement is a fair, reasonable, and equitable resolution of all issues dividing the parties.
3. WAIVER AND RELEASE OF RIGHTS .
Subject to the provisions of this Agreement, each party has released and discharged and by this Agreement does for himself or herself, or his or her legal heirs, legal representatives, executors, administrators and assigns, release and discharge the other of and from all causes of action, claims, right or demands whatsoever in law or equity which either of the parties ever had or now has against the other. Excepted from these mutual releases are any and all causes of action for divorce and/or revisions of judgment of a New Jersey Court to which this Agreement is appended by mutual consent of the parties.
4. WAIVER OF RIGHTS OF INHERITANCE .
Except as herein provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may now have or hereafter acquire under the present or future laws of any jurisdiction, to share in the property or the estate of the other as a result of the marital relationship. Each party shall, at the request of the other, execute, acknowledge and deliver any and all instrument that may be necessary or advisable to carry into effect this mutual waiver and relinquishment of all such interests, right and claims. Nothing in this Agreement shall be deemed to be a waiver by either party of his or her right to be appointed Guardian of the person or property of the un-emancipated child of said marriage if either spouse dies.
5. NON-CONCLUSION .
The parties agree that there have been no collusive agreements made by either of them orally or in writing, nor have any representations by one party been made to the other regarding a divorce to be secured in this or any other jurisdiction; and this Agreement has not been made for the purpose of encouraging any uncontested litigation now pending or which may be undertaken in any matrimonial action of any kind between the parties and submitted for the Court’s approval.
6. COMMENCEMENT DATE .
Unless otherwise indicated, this Agreement shall take effect on the date this Agreement is made as contained in the first sentence of this Agreement.
7. RECOGNITION OF LEGAL CONSEQUENCES .
Each party has given independent judgment and evaluation to this Agreement upon a thorough reading of this Agreement and completely understands each of the terms and provisions herein contained. Each party believes that this Agreement and all of its terms and provisions are fair, just, and equitable and each party voluntarily and understandingly executes this Agreement in full awareness of the legal effect of the provisions herein contained. Each party agrees to abide by the terms of this Agreement; it is the product of their voluntary act and deed. Each party realizes that the other party intends to rely on this Agreement. All of the terms and conditions of this Agreement shall be given the greatest degree of stability that the law accords to agreements of this nature. Any reference herein to modification or alteration of this Agreement by Court action shall not be deemed to confer upon a Court any jurisdiction or power that is not the Court in the absence of such reference. The parties agree that the benefits of all laws to which they are entitled are reserved unto them, except to the extent that the terms of this Agreement specifically deal with said laws, and their rights and obligations there under.
The parties intend this Agreement to be a complete and final resolution of all matters arising our of their marital relationship and intend to have this Agreement be a final and binding contract between them. Both Husband and Wife acknowledge that they have been informed of their right to have all issues arising in this matrimonial dispute, resolved by a Court determination. They waive the right of Court determination and accept the terms of this Agreement as a complete and final settlement
8. MEDIATOR’S FEES .
The parties will be responsible for the mediator’s fees as follows:
50% Husband; 50% Wife.
9. FURTHER ASSURANCES .
Each party shall make, execute and deliver any and all further assurances and instruments and perform any and all further acts that may reasonably be required in order to give effect to the terms, provisions and intentions of this Agreement.
10. INCORPORATING AGREEMENT IN JUDGMENT .
The parties agree and hereby stipulate that this Agreement shall be incorporated in any decree of judgment of divorce entered in any such action between the parties. It is specifically agreed and understood that the Agreement shall not be invalidated or otherwise affected by any decree or judgment of divorce or any other judgment in a matrimonial action between the parties, and the obligations and covenants of this Agreement shall survive and not be merged in any such decree or judgment.
11. PARTIAL INVALIDITY .
Should any provision herein be held to be invalid or unenforceable, all other provisions shall nevertheless continue to be valid and enforceable. All Provisions maintain and independent existence and no one provision is dependent upon the existence of the other.
12. NON-WAIVER .
The failure of either party to insist upon or enforce performance of any provision of this Agreement shall not be construed as a waiver or a relinquishment of any right in the event of any subsequent default of the same or any other provision in this Agreement.
13. HOLD HARMLESS .
The parties covenant and represent that they have not heretofore incurred or contracted any debts, charges or liabilities for which the other may be responsible except as otherwise stated in this Agreement. Each party hereby agree not to incur or contract, directly or indirectly, any debt, charge, or liability for which the other party may be held responsible, except such debts and liabilities disclosed in this Agreement or which shall be permitted in accordance with the terms of this Agreement. All customs, understandings and agreements that the parties may have had prior to the execution of this Agreement are hereby terminated and are of no further force or effect. Further, the parties covenant that they shall at all times in the future keep and hold the other safe and harmless and indemnify the other from any and all debts, charges and liabilities, including reasonable legal fees and expenses that are incurred by a party in connection with any such debt, charge or liability of the other party, or in the defense thereof.
14. BINDING NATURE, AMENDMENTS AND MODIFICATIONS .
This agreement shall be binding upon the estates of the parties and their respective heirs, executors, administrators, assigns and legal representatives. It is the whole and only agreement between the parties and shall not be modified, amended, supplemented or revoked except by the execution by the parties of a written agreement in a form substantially similar to this Agreement. Neither party shall be responsible fot any undertaking of obligation other than as specifically set forth herein. A reconciliation of the parties will not affect the validity of this Agreement unless it is amended, supplemented or revoked by execution by the parties of a written agreement in a form substantially similar to this Agreement.
15. HEADINGS FOR REFERENCE ONLY .
The headings preceding the text of several sections hereof are inserted for convenience and shall not affect the meaning, construction, scope or effect of this Agreement.
16. NOTICES AND ADDRESSES .
All notices required to be given hereunder shall be sent by regular mail addressed to each party. Husband and Wife shall at all times, keep the other informed of his or her place of residence and shall promptly notify the other of any change giving the address of the new residence.
17. BANKRUPTCY .
The bankruptcy of either party, prior to full payment of the indebtedness assumed by him or her in this Agreement shall be the basis for the non-bankrupt spouse to seek alimony/support sufficient to pay any debt which he or she may be required to pay by reason of the other’s bankruptcy. The bankruptcy of either party, prior to transfer of all assets required to be transferred to the non-bankrupt spouse by the terms of this Agreement, shall be the basis for the non-bankrupt spouse to seek alimony/support which is fit, reasonable and just.
18. GOVERNING LAW .
The place or places of execution of this Agreement shall have no bearing on the law governing its interpretation because it is under stood and agreed by both parties that the Agreement shall be construed and governed in accordance with laws of the State of New Jersey so long as at least one party or child resides in the State of New Jersey.
19. SUBSEQUENT DIVORCE .
Nothing herein contained shall be deemed to prevent either of the parties from maintaining a suit for absolute divorce against the other in any jurisdiction nor to bar the other from defending such suit. In the event that any action is instituted, the parties shall be bound by all the terms of said divorce in this Agreement.
20. NON-DISCLOSURE OF ASSETS .
The parties agree that in the event it is discovered at any time in the future that assets or income were not disclosed by one party to the other prior to the execution of this Agreement, then from whom the non-disclosed assets were withheld shall have the right to apply to any Court of competent jurisdiction for any and all relief to which he or she may be entitled under the law, including but not limited to a modification of this Agreement.
21. JOINT DRAFTING EFFORT .
It is understood and agreed that this Agreement reflects the joint drafting efforts of both parties. In the event of any dispute, disagreement or controversy arises regarding this Agreement, the parties shall be considered joint authors and no party is entitled to have this Agreement construed against him or her on the basis of such parties’ capacity as drafter.
22. WAIVER OF SUBSEQUENTLY ACQUIRED INCOME AND PROPERTY .
Except for modification of support issue raised by either party, all salaries, wages, capital gains, monies, assts and the like, of every nature, source and description, earned or received from any source or by any means after the execution of this Agreement shall be and remain the sole and separate property of the other party earning or receiving same. Husband and Wife agree to waive and relinquish any and all right he or she may now have or hereafter acquire in any real or tangible personal property subsequently acquired by the other party after the execution of this Agreement.
23. TAX CONSEQUENCES .
The parties acknowledge that they have been separately advised by their respective attorneys that there may be certain tax consequences pertaining to this agreement, that neither attorney has furnished tax advice with respect to this agreement, that each party has been directed and advised to obtain independent tax advice from a qualified tax accountant or tax counsel prior to signing this agreement and that they have had the opportunity to do so.