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

Will A Memorandum of Understanding Be Upheld Even If It Is Not Signed?

After 20 years of being a lawyer here in New Jersey, I have often advised my client’s that if a divorce or child custody agreement is not signed by both parties, it is unlikely to be upheld by a New Jersey Family Court. However, one of my associate attorneys at my law firm about a recent case that just came down ( Campbell v. Campbell ), in which a Memorandum of Understanding regarding the custody and parenting time was sustained even though neither party had signed the agreement.

Brian Campbell appealed from the incorporation of an unsigned mediated parenting time agreement with his wife, Laura Campbell into the parties’ final judgment of divorce dated February 6, 2014. Brian and Laura had two sons together who were ages ten and six at the time of the agreement. The six year old child had special needs, and had suffered from epilepsy in the past.

The terms agreed upon the October 15, 2012 mediation were put forth into writing by a mediator. The terms resulted in a memorandum of understanding. A memorandum of understanding describes an agreement between two or more parties. It expresses a meeting of will between parties, indicating an intended common line of action. It is often used in cases where parties either do not imply a legal commitment or in situations where the parties cannot create a legally enforceable agreement. A memorandum of understanding is, effectively, a written agreement. An MOU is sometimes confused with other, similar jargon, such as letter of intent or memorandum of agreement. For most legal purposes, however, all three of these terms amount to basically the same thing. Memorandums of understanding are very common. Some are general and concise. Others are long-winded and extremely detailed. No matter their length or complexity, memorandum of understandings specify mutually-accepted expectations between two or more people as they work together toward a common purpose.

Even though the memorandum of understanding was unsigned, the case was still reported as settled, with regard to parenting time, to the court. After Brian filed an answer to the divorce complaint, but before mediation, he had filed a parenting time plan that was quite similar to the memorandum of understanding, but with one big exception. Under the memorandum of understanding, he enjoyed more parenting time with his two sons. Rather than two week-night dinner visits, he was entitled to one weekly dinner visit and one weekly overnight.

In the memorandum of understanding, both Brian and Laura agreed to joint legal custody, with Brian as the parent of principal residence. The memorandum of understanding further allocated parenting time for each parent, including summer vacations and holidays.

Brian rejected the memorandum of understanding unless Laura agreed to modify it to include two weekly overnight stays. Also, Brian disputed details such as drop off times, and whether his parents could transport the children. Laura agreed to some of Brain’s proposed modifications, but not all of them. Finally, on December 7, 2012, Brian rejected the memorandum of understanding in a letter, almost two months after the mediation session.

Laura filed a motion seeking to incorporate the memorandum of understanding into the divorce decree on January 8, 2013. Conversely, Brian cross-moved to block consideration of the memorandum of understanding, to prevent the disclosure of anything said during negotiations, and for monetary sanctions on Laura for “blatant violation of the rule of confidentiality and defendant’s mediation privilege.”

In his supporting certification, Brian stated that while he was not waiving his statutory mediation privilege, he still accused Laura of twisting conversations that occurred during the mediation, and responded in detail to her allegedly inaccurate statements. He contended that going into mediation he had wanted two overnight visits every week, and that even the mediator told both of them that most judge’s would grant that request. Also, Brain contended that he compromised during the mediation session but Laura had not. Finally, he contended that he had suggested one dinner visit and one overnight weekly not Laura, as an accommodation. Brian maintained that he changed his mind regarding the memorandum of understanding because even after mediation, Laura was not cooperative in regards to his access to the children. He concluded that she would never voluntarily agree to increase parenting time, and litigation would be inevitable anyway.

When the Family Part granted the motion to incorporate the memorandum of understanding into the final judgment of divorce, the judge observed that the agreement substantially benefitted the children, and that if it was necessary the memorandum of understanding could be tweaked a bit in the best interest of the children anyway. The judge also reiterated that public policy encourages settlements in family disputes, adding that as long as the settlements are equitable, they will be enforced like any other contract. He added that the fact that Brian had later changed his mind was irrelevant to the fact they had agreed.

On appeal, Brian argued three points. First, that the Family Part had made an error in considering the terms of the memorandum of understanding drafted by the mediator, and the confidential communications in mediation. Second, that he did not waive the mediation privilege. Finally, Brian argued that the Family Part court failed to make the required findings of fact, or the set forth its conclusions of law.

The Appellate Part stated that it would not disturb a trial court’s factual findings if they were supported by adequate, substantial and credible evidence, and that it gave special deference to the Family Part’s expertise in their review of such findings. However the legal consequences that flow from factual determinations are not entitled to any special deference. Furthermore, the Appellate Division noted that the New Jersey justice system encourages and supports negotiated agreements between divorce litigants.

In the New Jersey Supreme Court case of Willingboro Mall, Ltd. V. 240/242 Franklin Ave., LLC, the Court stated that there are only two exceptions to the mediation communication privilege: a signed agreement or a waiver. In Campbell, the parties left the mediation session without signing the agreement. The Appellate Division stated, as the court said in Willingboro, that is impossible for someone to prove a settlement was reached during mediation without waiving the mediation privilege. Brian waived the mediation privilege when he responded to plaintiff’s motion. His discussion went beyond the document itself. He discussed his concerns with the memorandum of understanding, described conversations between the parties during the session, repeated statements made by the mediator, and outlined in detail his reasoning for rejecting the agreement. His breach resulted in an waiver of his mediation privilege. If Brian had simply utilized the protection of the Mediation Act and Evidence rules which mandate that a mediation party may prevent any other person from disclosing what was said during mediation, he would not have waived his privilege. However he chose to do more than simply object to Laura’s revelations.

The Court in Willingboro, held that a settlement that is reached at mediation but not reduced to a signed written agreement will not be enforceable. However, Willingboro, was not in effect at the time of the memorandum of understanding. Therefore, because the incorporation of the memorandum of understanding into the final judgment of divorce was pre-Willingboro, the judge was not wrong. Moreover, as the judge pointed out, there was not much difference in what was agreed upon and what Brain sought afterwards.

The mediation-communication privilege in intended to encourage open and honest settlement discussions. The rule calling for a signed, written agreement is intended to ensure that parties knowingly and voluntarily enter into the settlement and to protect the settlement from a future attack. Because of the circumstances, the Appellate Division found the trial court’s incorporation of the memorandum of understanding into the final judgment of divorce to be a valid exercise of power.

If you or a loved one is engaged in child custody, parenting time or divorce mediation, please never hesitate to contact my office. Thank you.