Wednesday, January 14, 2015

Marital Settlement Agreements: Considerations for Drafting New Jersey Divorce Settlements

Marital Settlement Agreements: Considerations for Drafting New Jersey Divorce Settlements
By: Justin M. Smigelsky, Esq.
            If carefully drafted, a marital settlement agreement (MSA)1 can work to minimize future disputes between divorcees – disputes that can require constant and costly legal assistance. Accordingly, it is very important to reach and draft an agreement that will work over a long period of time. Of course, the nature and content of such an agreement is dependent upon the unique circumstances of each divorce; however, with careful drafting, divorcees can implement a fair and equitable agreement that can minimize post-judgment litigation.
            New Jersey law strongly favors the amicable resolution of matrimonial disputes.2 MSAs, are enforceable, however, only to the extent they are just and equitable.3 It is up to the divorcee, with the advice of her attorney, to decide for herself what is fair and equitable – the parties are generally free to divide marital assets (and debt) in any manner they wish.4
            As to content, the parties are similarly free to include as much, or as little detail as desired. The standard MSA will include general introductory clauses and recital paragraphs (names, addresses, dates, background information in regards to the children, etc.), clauses pertaining to the parties’ children (form of custody, parenting time/visitation terms, religious upbringing, school concerns, etc.), spousal support provisions (form of alimony, waiver, cohabitation, escalation or reduction, etc.), clauses pertaining to equitable distribution (real property, pensions, financial accounts, vehicles, household items, etc.), clauses pertaining to division of marital debt5, clauses pertaining to tax issues (division of liability, apportionment of deductions, and methods of filing), clauses pertaining to litigation costs and expenses (who will pay the attorney and expert fees?), as well as various other provisions.
            As previously set forth, the terms of any agreement depend upon the relationship of the divorcing parties. For example, if there remains an element of trust between the parties, and they are willing to cooperate and communicate with each other in the future, an agreement may be drafted with general terms (an agreement that “breathes”). If, on the other hand, the parties are hostile towards each other, greater detail and specificity may be required in the provisions of the MSA, so that many contingencies can be addressed prior to seeking judicial intervention.
            In conclusion, a carefully drafted MSA will serve as an outline for all critical issues between divorcing parties for many years following the entry of the Judgment of Divorce. Although neither party will be completely happy with the provisions and what they may be conceding to their soon-to-be former spouse, at the very least, a properly drafted MSA can reflect the complete understanding of the parties as to their respective rights and obligations upon dissolution of the marriage.
Because reaching a divorce settlement, and memorializing the terms thereof, requires specialized knowledge in the area of family law, you may wish to consult with an experienced family law attorney if you are considering dissolution of your marriage. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.
  1. Although often referred to a a “property settlement agreement," this term is somewhat of a misnomer; agreements regarding resolution of marital issues do not relate to only real or personal property.
  2. See e.g., Harrington v. Harrington, 281 N.J. Super. 39 (App. Div. 1995).
  3. See Faherty v. Faherty, 97 N.J. 99 (1984).
  4. DeLorean v. DeLorean, 211 N.J. Super. 432, 437 (Ch. Div. 1986).
  5. Unfortunately, division is of marital debt has become more prevalent than division of assets.

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