Marital Settlement Agreements (MSAs)

For whatever reason, it is not unusual for a Marital Settlement Agreement and/or Custody Agreement to have a mediation clause in it which requires parties to go to mediation before bringing an issue to the Court by way or motion.  For some issues, like enforcement, one questions the obligation to go to mediation.  Either someone violated the agreement or they didn’t.  Other issues require a more swift decision and mediation could only slow the resolution down, especially for the party who might benefit from the delay.  And while we see these clauses all of the time, I have also seen many judges ignore the clause and adjudicate the dispute. 

This, however, is not what happened in the Decilveo n/k/a Woolf v. Decilveo case decided today by the Appellate Division in an unreported (non-precedential) opinion.  In this case, the parties divorce agreement stated:

In the event that any differences arise out of the interpretation, construction or
operation of this Agreement, the parties further specifically agree as follows:

(a) They shall first attempt in good faith to resolve such differences amicably and directly with each other, retaining the right to seek advice of counsel;

(b) If they are unable to resolve any dispute between themselves or with the assistance of counsel, or through mediation, either side may submit same to a Court of competent jurisdiction for resolution.

Arguably, this provision does not appear to specifically apply to enforcement or modification, two major parts of this litigation but the trial judge interpreted the agreement broadly, forcing the parties to mediation to address their numerous disputes. Continue Reading If Your Agreement Has a Mediation Clause In It To Resolve Future Disputes, You Actually Have to Go to Mediation To Resolve Future Disputes

It is common and often unfortunate that I meet with clients who decided, for whatever reason, that they would represent themselves during a divorce proceeding.  There are cases where that decision may be perfectly acceptable.  More often than not, the people I have met are coming to me because they are totally unsatisfied and/or unhappy with the deal they’ve made for themself and are looking to an attorney to get them a better deal.  Sometimes this is a possibility.  However, when the ink is dry on that formal agreement, it makes things more complicated.

Recently, the Appellate Division affirmed a lower court’s decision regarding the enforceability and conscionability of an Agreement negotiated and reached by the parties and formalized by husband’s attorney.  Wife chose to remain self represented during the negotiations and execution of the Agreement.

After husband made a post-divorce application in the trial court to enforce the Agreement, wife challenged its validity, claiming unconscionability, inequity, unfairness and that it was obtained through fraud.  The trial court conducted a two day hearing during which both parties and husband’s attorney testified.  Thereafter, the trial court rejected wife’s arguments that the Agreement was invalid, unfair, inequitable and procured through fraud.Continue Reading Be Careful What You Bargain For Without the Advice of Counsel

The phrases “he who is his own lawyer has a fool for a client” and “you get what you pay for” proved to be true in the recent unpublished New Jersey Appellate Division decision of Andreaci v. Andreaci, App. Div. Docket No. A-1934-08T31934-08T3, decided, January 25, 2010. In Andreaci, after 16 years of marriage, husband filed for divorce. The husband represented himself and the wife had a pro bono lawyer. The parties reached a settlement which was memorialized into a Marital Settlement Agreement and incorporated into the parties’ Judgment of Divorce. The Agreement provides, in pertinent part, the following:

  1. Wife obtained custody of the parties to two children and ownership of the marital home;
  2. The second home owned by the parties was to be sold, and the proceeds held for the education of the children; and
  3. Husband was required to pay $800 per week/$3,466 per month (Said sum was designed to cover the cost of the monthly mortgage payment of approximately $3,000 per month).

The husband quickly fell behind on his child support payments. He was incarcerated on a bench warrant for non-support, and borrowed $5,000 to obtain his release from jail. Thereafter, husband filed a motion to seeking to reduce his support payments and other ancillary relief.  The trial court set the matter down for a plenary hearing and in the interim reduced husband’s support payments to $225 per week.Continue Reading The Importance of Legal Representation

When most parties enter into what is commonly referred to as a Property Settlement or Marital Settlement Agreement, they do so with the intention that this is a comprehensive agreement, resolving all the issues and a document that will govern their dealings with an ex-spouse going forward.

Oftentimes people are shocked to learn that some provisions in those agreements can be subject to modifications by a court.  Such is the case of the recent unpublished appellate division matter of Anello v. Anello, Decided March 23, 2009, A-2405-07T3.

These parties were married in 1982 and divorced in 2002 by way of a dual final judgment of divorce incorporating the terms of their Property Settlement Agreement. (“PSA”)  Two children were born of this marriage.  In the PSA entered into by the parties, the husband was entitled to alimony, to which there was a specific and detailed waiver of this right.  Husband waived the right to receive permanent alimony and gave wife a greater share of equitable distribution in exchange for a total and permanent waiver of a child support obligation for both children.  Husband did agree to contribute to college expenses and non-recurring extraordinary events for the children.  Husband’s waiver of permanent alimony was expressly conditioned upon his non-payment of child support.

Some four years after the agreement was entered into, husband filed a motion seeking custody of the son, child support, alimony and counsel fees.  The parties entered into a Consent Order resolving this motion, which reserved the issues of child support and alimony pending discovery.Continue Reading Post-Divorce Modifications to Agreements