You have painstakingly negotiated (or mediated) the terms of a Marital Settlement Agreement over the course of many months.  You think you’re home free.  You think that you simply have to put together or finalize the agreement and get it signed.  You stop discovery, cancel depositions and relax, congratulate your client and pat yourself on the back for a job well done.  Then it happens.  The other side reneges.

Sometimes they renege before you even start drafting the agreement.  Sometimes they draft an agreement that bears no resemblance to the agreed upon settlement and/or respond to your proposed agreement with changes that make you think they are talking about another case entirely.

In a recent case, an attorney told me that he told his client that he was making him look bad because he kept reneging, though in the same case, when it was time for the rubber to meet the road, that attorney disavowed that there ever was an agreement.  I really hate that.  So did my client who only made the final capitulations to get the matter done after the first time her husband reneged.

So what do you do?  Is all lost?  Do you have to start from scratch?  Not necessarily.  In the right case, you can file what is a called a Harrington motion seeking to have the court enforce an agreement.  Basically, Harrington is a case that says that if the major terms have been agreed upon, you could have a binding settlement even if a writing cannot be achieved because the other side wont sign.  I think that the best rationale for this comes from the Bistricer case, where Judge Humphreys said:

… the proposition that a case is not settled until the last “i” is dotted and the last “t” is crossed on a written settlement agreement carries the germ of much mischief.  A party could, in bad faith, waste the time of the court and the other litigant in protracted settlement negotiations, and then, after a “framework” has been established, wiggle out of that framework by creating a flood of new issues and questions.

Courts have made clear that An agreement does not have to be “spread” out on the record to be valid.  Another court has said “… second thoughts are entitled to absolutely noweight as against our policy in favor of settlement.”

In a case that I was involved in, Brawer v. Brawer, the Appellate Division noted that a party’s unexpressed intent not to be bound was also immaterial.  Specifically, the Appellate Division held that a contracting party is bound by the apparent intention he outwardly manifests to the other party, and it is immaterial that he has a different, secret intention from that outwardly manifested.   Rather, his objective manifestations of intent are sufficient and controlling.  Put another way, you can’t tell the other side you are settled and then say you didn’t mean it.

Some times, if the other side is really intent on blowing the deal, a Harrington motion may be the perfect remedy.  If nothing else, it may bring the other side back to the table.  If not and you win the motion, then you can congratulate yourself for a job well done, for the second time.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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