What happens if my husband (wife) changes his mind?
As an attorney, I can’t tell you how many times I’ve heard “My husband (wife) changed his mind. He will not sign the Property Settlement Agreement.” When two people are getting divorced, the courts in New Jersey require that the parties attend economic mediation if they cannot agree at the Early Settlement Panel. The Early Settlement Panel is a group of two or three experienced attorneys who volunteer their time with the court to help you settle your case. If the parties are not able to settle, they are required to attend at least two free hours of mediation with a court certified economic mediator of their choosing. Often, mediation sessions can be very productive and the parties are able to agree on some of the issues, if not all of them. Once mediation is completed, one of the two attorneys involved with the case drafts a Property Settlement Agreement to memorialize the terms agreed upon.
All too often, after mediation is complete and the parties are in the process of negotiating the specific wording of the Property Settlement Agreement, one of parties states he or she does not like the agreement and refuses to sign. When this happens the other party will usually request a Harrington hearing. The name Harrington hearing comes from the case Harrington v. Harrington, 281 N.J. Super. 39 (1995), 656 A.2d 456. In that case the judge stated:
Moreover, to be enforceable, matrimonial agreements, as any other agreements, need not necessarily be reduced to writing or placed on the record. And we recognize that “[w]here the parties agree upon the essential terms of a settlement, so that the mechanics can be `fleshed out’ in a writing to be thereafter executed, the settlement will be enforced notwithstanding the fact that the writing does not materialize because a party later reneges.” Lahue, supra, 263 N.J. Super. at 596, 623 A.2d 775. Harrington v. Harrington 281 N.J.Super. at 46.
Based on the above, it is possible to enforce an oral agreement between the parties.
The best way I have found to preserve an agreement made during mediation is to ask the mediator to draft a short and simple document entitled “Settlement Terms”. Within this document are the basic terms the parties have agreed to during mediation. There are no legal terms within the document and it is written in plain English so the litigants, themselves, can understand the writing. Once that is complete, the parties and the attorneys review and sign the document. Later, if one party or the other wants to change or renege on the agreement, the terms are in writing for the judge to review. Keep in mind, this may not solve all the problems encountered regarding the practicality of following the agreement but it does fulfill the aspect of “essential terms” mentioned above so the parties can be divorced.
At Thomas Roughneen & Associates, we can help you reach a fair and equitable agreement with your spouse. For more information on mediation or enforcing your agreement, contact our office at (973) 937-6040 or view our website at www.citizensoldierlaw.com.