Unless Divorce and Custody Agreements Are Reduced to Writing and Signed by the Parties Normally the Agreement Is Not Going to Be Enforceable
Docket No. A-3657-20
Decided June 29, 2022
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey affirmed a trial court’s denial of defendant’s request to enforce an agreement after mediation but never put into writing.
In Goethals, after fifteen years of marriage, the parties divorced in 2016. Following their divorce, the parties have filed numerous post-judgment motions and several appeals. On September 21, 2020, the parties and their counsel met with a mediator to try to resolve issues concerning alimony, child support, and school expenses for their two sons. Following the mediation, the mediator prepared a memorandum setting forth terms of “a tentative agreement as to all the post judgment issues.” That memorandum was not signed by the parties or their counsel; instead, it was sent to the parties’ counsel via an email that stated, in part: “Here is a memo of the tentative resolution reached. As we discussed[,] if you have comments or changes let me know – and I can convert it into a Consent order.”
Defense counsel converted the terms of the memorandum into a proposed consent order. On October 14, 2020, defense counsel sent the proposed consent order to plaintiff’s counsel. In the email forwarding the proposed consent order, defense counsel acknowledged that he had added issues not addressed in the mediator’s memorandum or discussed at the mediation. Defense counsel asked plaintiff’s counsel to “[t]ake a look [at the proposed consent order] and perhaps we can schedule a follow-up mediation with [the mediator] to put this to bed if needed.”
Plaintiff did not agree to or sign the proposed consent order. Instead, over the next three months, counsel for the parties discussed various unresolved issues and possible modifications to the proposed consent order. In December 2020 and January 2021, defense counsel sent plaintiff’s counsel several versions of a proposed consent order.
On January 20, 2021, defense counsel sent plaintiff’s counsel another “updated Consent Order” that defendant had signed. In his email, defense counsel stated, in part: “Attached is a signed final Consent Order signed by our client. Kindly have your client sign so we can forward to Susan and resolve this matter once and for all.” It is undisputed that plaintiff did not sign the proposed consent order forwarded on January 20, 2021.
On March 17, 2021, defendant filed a motion to compel plaintiff to comply with the terms of the proposed consent order sent on January 20, 2021. Alternatively, defendant requested a plenary hearing to determine whether the parties had agreed to settle their disputes. Plaintiff opposed that motion.
The Court determined that was clear by the undisputed facts through emails of counsel that the mediation agreement had never formed into a written signed agreement by the parties. Accordingly, defendant’s motion to enforce the agreement was denied. Defendant appealed and the Appellate Division affirmed, finding that even if there is an agreement in mediation, unless it is in writing and signed, there is no binding agreement.
This case is important to understand agreements and writing in divorce and custody court. Unless the agreement is reduced to writing and signed by the parties normally the agreement is not going to be enforceable. There are a few exceptions to this rule. If the terms are placed on the record before the Court after the parties are sworn, this will be a binding agreement even if those terms never are reduced to writing and signed by the parties. What’s more, an agreement in text or email to certain terms can be deemed an enforceable agreement even if those terms are not made into a formal consent order.
If you have questions about agreements in family court, alimony, child support, divorce and custody, contact the experienced matrimonial divorce attorneys at Hark & Hark today.
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