Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

In A New Jersey Divorce, Must I Attend Mediation If There Is A Restraining Order?

No.  For over the past twenty years as a divorce lawyer, I have been waiting for a decision from the Superior Court of New Jersey to confirm this “no brainer” decision.  In a recent case, the parties agreed in their divorce agreement that they (and their respective attorneys) agreed to attend mediation to resolve any issues that may arise after the divorce has been concluded.  Then, a final restraining order was issued.  Therefore, the New Jersey Appellate decision determined to strike this clause of the original divorce agreement for obvious safety fears.

Generally, New Jersey Family Courts enforce the provisions of a settlement agreement so long as they are fair and just. However, just because a provision may have been fair at the time the settlement agreement was signed does not necessarily mean that it is still fair. Thankfully for victims of domestic violence, New Jersey Family Part courts give authority to final restraining orders over marital settlement agreements.

 In O.P v. L.G-P, ex-wife L.G-P appealed from a post-divorce order dated September 6, 2013. This order resolved her motion to enforce the child support sections of a property settlement agreement, that was entered when she and her ex-husband divorced in 2009. L.G-P. and her ex-husband, O.P, got married in 2006, and had one child together in 2007. In a property settlement agreement, they mutually agreed to communicate with each other about their child, and further agreed to mediation if they could not agree. Both of these provisions required significant cooperation between the parents.

Within months of the final judgment, however, post-divorce litigation began. Furthermore, a final restraining order was entered against O.P. under New Jersey's Prevention of Domestic Violence Act. After this final restraining order was entered, a motion court enforced provisions of the property settlement agreement that required mediation and frequent contact. The New Jersey Appellate Division stated this was a mistake of law.

O.P agreed to pay L.G-P $ 135 every week in the 2009 property settlement agreement. This settlement agreement also required him to pay 40 % of medical expenses, dental and medical insurance, extraordinary expenses that included costs for school and sport, and a yearly fee to an au pair service agency, a weekly salary for the au pair, and a yearly stipend for the au pair’s education. According to the settlement agreement, the parties mutually agreed that the child support obligations could be changed in the future in the case of changed circumstances. One stated change of circumstance was when O.P’s daughter from another marriage became emancipated. The parent’s also agreed to keep a $ 250,00 life insurance policy with their son as the beneficiary.

The property settlement agreement also stated that is the parents were not able to solve any disputes in the future, they would go to mediation “through a mutually agreed upon mediator” before going to court. Numerous post divorce motions were filed and afterwards a final restraining order was issued on December 3, 2010.

After this final restraining order was issued, the parents came back to court to decide a fourth set of motions. Despite the final restraining order, the court still ordered the parents to resolve their disputes through mediation. But their mediator ender her private practice soon after, and as a result O.P had a friend communicate with L.G-P. through email.

On August 1, 2013, another motion was filed by L.G-P., in which she alleged that her ex-husband owed her medical bills from 2011 in the amount of $ 102, medical bills from 2012 in the amount of $ 330.67, and dental and medical insurance premiums from 2011 to 2013 in the amount of $ 783.01. She further alleged that her ex-husband still owed her $ 562.45 for swim lessons incurred from 2011 to 2013, and for extracurricular activities  from 2011 to 2013 in the amount of $ 228.86. As proof she submitted receipts, that she contended she had already provided O.P numerous times through email and during mediation, that he still refused to pay. In response, O.P. filed a cross-motion which sought to strike his ex-wife’s motion. In the motion he stated that he did not in fact hire the mediator, and that after the mediator closed her practice, his ex-wife would not cooperate in finding a new one. According to O.P., mediation had been very helpful in solving problems between the two, and he wanted to continue mediation.

Oral argument has held, after which the court ordered O.P to reimburse his ex-wife for the bills that he owed her. L.G-P.’s request for reimbursement of the swim lessons and school expenses were denied without prejudice because in violation of the terms of the settlement agreement, she did not communicate with O.P. about these costs before she spent money on them and further failed to provide her ex-husband with proof of them. Even though L.G-P. pleaded with the court that her final restraining order against restricted her ex-husband from communicating with her, the motion court still asked her to modify the final restraining order to allow email communication so they could discuss extracurricular activities for their son. However, L.G-P, did not wish to amend the final restraining order because she thought O.P. would send her threatening and derogatory and threatening emails. The court next ordered L.G-P. and O.P. to go to mediation to solve all of their remaining disputes.

L.G-P took issue with this order, and stated that mediation did not work, and that the settlement agreement already explicitly stated her ex-husband’s obligations. In response, the court asked how she expected O.P. to give her proof with the final restraining order still in place. She offered that his lawyer could send them to her, or in the alternative, a police officer could give delivery them to her during parenting-time transfers. The court did not accept these suggestions and ordered her to resolve any disputes they may have through mediation. As a result, L.G-P. appealed the New Jersey Appellate Division.

The New Jersey Appellate Division started its opinion by stating that the parties’ settlement agreement was flawed because instead of specifically including their children’s extracurricular activities in the monthly child support payment, they left it ambiguous to the point where they had to constantly pay different amounts. This forced them to be in constant contact with each other, and required them to cooperate at a level that divorced couples normally did not. This built up animosity that eventually led to a final restraining order.

In regards to this final restraining order, the New Jersey Appellate Division stated that if a final restraining order has a restriction barring contact between parties, and the victim of the domestic violence wishes not to partake in such contact, then a judge may not, in future litigation, order the victim to modify a no-contact restriction. The appellate panel cited the authority of the New Jersey Supreme Court, which had held that in a domestic violence case, a judge may “grant any relief necessary to prevent future abuse.” Therefore, the judge in the post-divorce motion at issue, should have respected the previous judge’s authority and should not have suggested to the victim that she should modify the language of the final restraining order, that was ordered to protect her. When a final restraining order is issued, the issuing judge must make a finding that order, and the protective relief it granted, is necessary to protect the victim. Knowing this, the motion judge should have also known that L.G-P. would have been in danger without the protection of the final restraining order, and thus should not have ordered her to have more contact with her ex-husband.

Furthermore, the New Jersey Appellate Division found that the motion court should not have ordered L.G-P. and O.P. to go to resolve their disputes through mediation. The appellate panel went on to explain that while a court rule and directive exclude the mediation of certain issues if a final restraining order in power, they do not cover the situation when an already existing property settlement agreement requires both mediation and parental communication. While divorce litigants can mutually agree to ignore legal rights in a settlement agreement, and a court should generally enforce what is mutually agreed to in a property settlement agreement, reasonable provisions can become unreasonable when a final restraining order is entered. In fact, mediation can become unreasonable and actually unsafe when a final restraining order has been issued. The bargaining position of the victim could be hindered by the history of past violence.  At the time of mediation, people do not think that a final restraining order will be issued, therefore in the interest of public policy, mediation should not be ordered after a final restraining order has been issued, even if to enforce a property settlement agreement. Therefore the New Jersey Appellate Division dismissed the previous order of the motion court and ordered that a new hearing take place where the court issue a child support order that covers each parents financial responsibilities without ordering the communication required in the property settlement agreement. 

Please give my office a call if you are facing problems with your “ex” after your divorce has been finalized.