Do You Think that Your New Jersey Marital Settlement Agreement Must Be in Writing and Signed by Both Parties Before it is Enforceable? Not Necessarily.
Contrary to what many people believe, in New Jersey matrimonial agreements do not have be signed by both spouses to be enforceable. Indeed, they do not even have to be in writing.
As long as the parties agree on the essential terms of a settlement, they can be deemed to have a binding agreement.
That principle formed the basis of a New Jersey appeal court’s recent decision in the case of D’Elia v. D’Elia.
After an 18-year marriage, the husband filed for divorce. When the parties and their attorneys appeared before the court during their continuing settlement negotiations, the husband’s lawyer told the New Jersey family court judge that he believed that the case had been resolved, that he had a proposed written agreement that he had been marking up, and that he would like to go back to his office, mark it up and submit it.
The New Jersey family court judge then put on the record that the negotiations had “resulted in a satisfactory resolution of the matter,” and the husband’s lawyer responded, “[y]es.” The judge then said that “upon your representations, I’ll accept that there will be a judgment of Divorce with the appropriate [A]greement to be submitted…” The wife’s attorney apparently said nothing.
The next day, the husband’s lawyer sent the wife’s lawyer the latest draft of the Marital Settlement Agreement. That Agreement included a comprehensive provision in which the wife agreed to pay the husband permanent alimony, albeit in a lower amount because of the parties’ recognition that there was then pending legislation which might eliminate permanent alimony in New Jersey even in cases that had already been resolved.
The wife’s lawyer responded by saying that the wife was requesting some changes, but that the lawyer did not believe that “any of the changes materially affect the spirit or intent of [their] settlement.” Although the wife did not sign the Marital Settlement Agreement, she did not dispute that she had agreed to pay the husband permanent alimony.
One week before the parties were scheduled to appear in court to finalize the divorce, the wife’s attorney advised the husband’s attorney that the wife had changed her mind about paying permanent alimony.
By that time, the New Jersey Legislature had passed the Alimony Reform Act of 2014, which was awaiting Governor Christie’s signature. That statute eliminated permanent alimony and provided that, absent exceptional circumstances, in marriages lasting less than 20 years, the length of alimony could not exceed the length of the marriage.
However, the statute also stated that it did not apply to “…specifically bargained for contractual provisions that [had] been incorporated into…any [previous] enforceable written agreement….”
The New Jersey Family Court judge granted the husband’s motion to enforce the Marital Settlement Agreement, finding that “there was an agreement between the parties and all material terms were agreed upon.” The judge directed the parties to resolve [a]ny non-material open issues within 30 days, failing which the judge would determine whether to schedule a hearing on those issues.
The New Jersey appeals court denied the wife’s appeal, which was based in part on the fact that she had never signed the Marital Settlement Agreement. The appeals court observed that “to be enforceable, matrimonial agreements, as any other agreements, need not necessarily be reduced to writing or placed on the record…Where 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.”
The D’Elia appeals court decision illustrates why it is vitally important that a party make it clear—in writing or on the record in open court—if he or she believes that a settlement has not been reached.
Salvaggio Law Group devotes its entire practice to New Jersey Divorce and Family Law matters, including those related to Settlement Agreements. If you want to talk, please call us at 973-447-4981 or fill out the Contact Form on our firm’s website.