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

Speak Now or Forever Hold Your Peace - Make Sure you Understand Your Divorce Agreement!

I have noticed that more and more people facing a New Jersey Divorce are using mediation (or collaborative law) for various reasons.  Many times, the divorce is fairly amicable and the couple may calmly discuss their situation and focus on what is ultimately truly at hand; kids and money.  If this is the case with your NJ Divorce, you may also save yourself a significant amount of money in legal fees (and emotional stress) when engaging in mediation.  Other folks who have already filed a Complaint for Divorce in the Superior Court of New Jersey must attend economic mediation before heading to a potential trial.

Hopefully as some point of mediation a complete agreement has been reached.  A sudden sense of relief sweeps through the room.  Exhausted yet exhilarated. However, the job is not done.  Either the mediator or your New Jersey Divorce Attorney shall recite all of the terms of the agreement, preferably with everyone sitting around the conference table with a pen and paper in front of them in case anyone has any final questions.  I have seen some mediators type up the terms of the agreement and have everyone sign the draft.  Other times, the agreement will be drawn up later by the mediator or one of the divorce attorneys.  When this happens, the people have a "hand shake" deal and walk out of the mediation with the firm belief that the "fight" is over.

My nearly 20 years experience allows me to share a scenario which occurs more times than one may think.  One or both of the parties immediately pick up the phone (these days probably as they are pulling out of the parking lot) and start sharing with their loved ones "what happened."  This is where trouble may begin because your friends and family are almost always going to feel that you agreed to a "bad deal." Frankly, it is not hard to understand why this happens; because they love you so much, they want you to "win!"  However, I can assure you that a divorce agreement is fair when, as I have said to many people, "you have a fair deal when everyone walks away equally unhappy."  It is a divorce and there are no winners others than (hopefully) the children who have been protected by two loving parents as well as each person who now can truly begin to have complete closure from this traumatic life event.

Furthermore, because they were not part of the mediation process, it is likely that your loved ones do not appreciate how many things "the other side" gave to you in exchange for things that you gave to them.  In lawyer world we call this a Quid Quo Pro, or in the real world more commonly known as "give and take." Nevertheless, especially in light of all the inevitably emotions involved, you may start to think to yourself, "hey, you know what, they are right," and before you know it you are all worked up, convinced that you have been "ripped off," and ready to speed dial your lawyer to "call the deal off!"

Trouble.  Big trouble.  Now it is a whole new ball game because, legally speaking, the game has shifted away from "kids and money," and now the center of attention becomes whether the agreement that you just entered into the day or days earlier is binding and would be upheld by a New Jersey Family Court.  Many factors immediately come into play.  First, Judges in Family Court are huge fans of settlements and do not want them disturbed unless someone has a very good reason as to why you should be allowed to "blow up" the deal.  Expect the Judge to be quite skeptical if you are the one trying to change or destroy the agreement.  

Second, the process now gets really complicated and expensive.  One of the two spouses is going to file in a New Jersey Family Court either motion to uphold the agreement or the other spouse will file to vacate the agreement.  Ultimately, you are facing something called a Harrington hearing.  This is a trial during which a Judge will decide if you have a valid reason to have the agreement set aside and start negotiating from scratch.  Your respective divorce lawyers will have to replaced by new divorce lawyers for each side because your original lawyer likely be a witness in your trial and would then testify as to the facts regarding what happened at mediation. So between the motions, hiring new lawyers and then a trial, this has now gotten extremely expensive.  Extremely.

The judge needs to determine if the agreement was clear to the people when they entered into it.  Proof of this can be if one or both of the spouses have already taken actions consistent with the agreement.  A good example would be having ordered a home appraisal to determine its "buy-out" value.  If the agreement was reduced to writing and signed by everyone, were the terms of the agreement very clear?  If the deal was verbally agreed upon at mediation it will most likely be upheld if, once again, one of the parties already started to act consistent with the terms of the agreement even before the mediator or one of the lawyers have drawn up the papers. One of the few times that I have seen these agreements "thrown out of Court" is when one or both spouses failed to provide full disclosure of all assets and income. 

Of course, if you have an experienced and savvy divorce lawyer on your side, this would always happen before that attorney would allow you to enter into the agreement.  Otherwise, you have a tough road ahead of you.

So the morals of this story are clear:

First, make sure that you have full disclosure of all assets, debts and income;

Second, it is important to have a experienced divorce lawyer on your side in order to make sure you enter into a fair agreement;

Finally, while I am all about having your family and friends being your "support system" through this difficult time of life, at the end of the day, it is your decision and your decision alone.

At my office we offer client's different roles for the lawyer to play.  Sometimes I am more of a consultant and in between my client's mediation sessions we have meeting or phone conference to discuss the negotiations and my legal opinion of what is going on.  I may say, "that's fair," or I may say, "that is a really good deal for you."  Of course, I may say, "this deal is not fair to you and I advise you not agree to it!"  Other times, I am directly involved in the mediation process and sit at the mediation table with you so that I may advise you every step of the way.  I love giving my client's options and I truly believe that it is almost always best for the two spouses to reach an amicable deal instead of a vicious court fight which results in a "stranger in a robe" deciding when you get to see your own children never mind all of the financial aspects.  

Please contact my office if you are or someone you care about is in a relationship that is likely "end stage" so we may "game plan" how to handle the situation with a cost-effective and beneficial outcome for you.