As a litigant, you can only agree to settle based on what you know. When the other party details their income, assets and liabilities by anwering discovery and producing documents under oath, signing a Case Information Statement under oath also detailing such information, testifying during a deposition that there exists nothing else, asserting throughout a
Oftentimes, a less economically able party is faced with a spouse or former spouse who insists on litigating time and again simply because they can, hoping that the “war of attrition” will force the other party to give them what they want to avoid further motion practice. We as family practitioners know that while the…
Generally speaking, New Jersey statutes and court rules cloak settlement negotiations with secrecy (legally, called a “privilege”) such that what goes on in those proceedings are not evidential, that is, they are “privileged” from being disclosed to a court.
Somewhat of an exception arises in cases in which the negotiations produce an oral agreement. Let’s first deal with this in the context of settlement negotiations not in the mediation context. Usually, it happens this way: the parties are participating in a “4-way” settlement session in which each party is present (either physically or by phone), as is their attorneys. Through the negotiations, agreement is reached as to the basic provisions such that both parties walk away from the session thinking that they have reached a binding agreement, albeit oral, subject only to “finalizing” it by reducing it to writing (and filling in details that would normally expand the basic terms during the drafting process), approved by the attorneys, and signed by the parties. One of the parties then changes his or her mind before any written agreement is signed. The other party says “wait a minute, you can’t do that, we had an oral agreement. You can’t change your mind.” The party backing off of the arrangement says “but we did not have a full agreement. There were many terms and details still to be negotiated.”
The New Jersey Appellate Division has held that an application seeking to set aside a Property Settlement Agreement (PSA) under Rule 4:50-1 of the New Jersey Rules of Court should be granted "sparingly." It was this very type of application that formed the basis of the Appellate Division’s recent opinion in Heald v. Heald, found here.
The parties were married for 28 years and had 4 children before the Final Judgment of Divorce was entered in November 2006. They had separated in 2005 and, for a significant period of time, negotiated the terms ultimately encompassed in a PSA, executed in April 2006. Notably, the parties agreed to use the Husband’s 2004 income to determine his support obligations. The PSA also contained language that the parties were knowingly waiving their right to discovery regarding each other’s income and assets.