During the current football free agent season, you hear the pundits frequently say that if you get a free agent that you want to sign in your building, don’t let him leave without a deal. Why? You don’t want them to get wooed by some other team or have second thoughts. How does this apply to divorce, you may ask?
The case has been going on a long time. One or both of the litigants or opposing counsel is difficult. You are finally all together at a settlement conference, mediation, Intensive Settlement Conference at court. Much to your surprise, real progress toward settlement is being made. Finally, after a long, torturous day, you have a deal.
Now what do you do? Do you do something to bind the parties to the essential terms of the deal? If in court, do you put the terms on the record? If at mediation, do you prepare some type of memorandum as the Willinboro Mall case that we have blogged on requires? Or do you adjourn to prepare a formal Marital Settlement Agreement or Consent Order, knowing that someone could have second thoughts and blow the deal? What if your client is desperate for the case to be done, but they are agreeing to a borderline bad or really bad deal? Do you suggest that you adjourn to allow cooler heads to prevail with the hope that your client may re-think their acquiescence (maybe it was out of guilt, shame, fatigue, duress, emotional abuse going on behind the scenes, maybe they didn’t really understand, maybe they didn’t take their medicine. may they took a substance, etc.)?
That said, why do we not seal the deal, all of the time, even without a formal agreement listing all of the terms? Because the devil is often in the details. There are logisitical issues, issues about security, specific tax issues, issues regarding the specifics about how you will divide a retirement asset, etc. as well as a lot of other boilerplate – some meaningfull – some less so – that you would include in a formal agreement. Sometimes you think you have a deal but then when you start discussing the details, you realize that there is more work to do, or in some cases, that there really wasn’t a meeting of the minds, at all.
Ok – so it sounds like you should never have a settlement without a formal agreement. That’s not always true either, even though it is probably advisable. In a recent matter, one party repeatedly reneged on a deal, even after my client agreed to “just one more thing” over and over and over. At a court settlement conference, both that litigant’s attorney and the mediator were of the firm opinion that if the deal wasn’t put on the record, they feared that the other party would renege yet again. So even though this was complicated, we put the basic terms on the record because it was important to bind them for other reasons. There are other times when it may make sense to bind people to their agreement, as well. It really is a case by case decision.
These are scenarios that divorce lawyers and litigants face every day. This is tough stuff. There is sense of relief, if not euphoria, when a matter is settled. That said – you have to choose wisely before you walk out of the door without the settlement being completely buttoned down.
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 firstname.lastname@example.org.