Statistically speaking, over 90% of divorce cases result in a settlement rather than a full blown trial of contested issues such as custody, parenting time, alimony, child support and equitable distribution of marital assets. Sometimes settlement occurs early in the process; at other times it may be on the proverbial eve of trial. In either case, the end product consists of a comprehensive written Marital Settlement Agreement (hereafter MSA) signed by both parties which is incorporated in the Judgment of Divorce and enforceable as if it were an Order of the court.
Not every divorce judgment is the same and therein lies the problem of enforcement since the court does not pass upon the merits of fairness of an MSA but simply finds that the parties entered into their Agreement voluntarily while each was represented by independent counsel. Thus, it is difficult to enforce settlement agreements that are poorly drafted since the MSA will contain inherent problems with its provisions whereas a tightly constructed one eliminates difficulties of interpreting the parties’ actual intent. For example, an MSA which states the parties will have “joint legal custody” without further definition is an invitation to trouble, as is such language as a parent simply having “reasonable and liberal parenting time”. The difficulties are compounded when dealing with financial issues such as alimony, division of retirement benefits and the like unless the intent of the parties is adequately explained. Thus, the enforcement of an MSA is directly linked to the care and effort which went into its construction.
Assuming a motion to enforce settlement agreement is sought, the legal starting point is the presumption that the Agreement is entitled to validity and judicial deference since it presumably represents the parties’ intentions. It could therefore be said that MSA’s are held in greater initial regard than the court’s own rulings because the court assumes that the parties knew what they wanted to accomplish even if the result is different from what the court might have ordered. This presumption can be overcome by presentation of sufficient evidence regarding the parties’ intent or the occurrence of substantial changed circumstances which makes enforcement of the Agreement unfair or no longer applicable.
On the other hand, some MSA provisions are void from the outset although these represent a small minority. For example, a provision stating that in consideration for non-payment of child support, a non-custodial parent will forego his or her parenting time violates New Jersey public policy and would not be enforceable. Similarly, courts retain the authority to reform blatantly unconscionable Agreements to achieve justice.
The important point is that MSA’s are a valuable part of matrimonial law and as such should be approached with care and attention to detail. Although Agreements are preferred by the courts, this does not mean that anyone should enter into an MSA which, after consulting with qualified counsel, he or she believes to be fundamentally unfair. In such cases, which are in the minority, courts remain ready, willing and able to make rulings upon such matters even though the outcome may be different from what either or both of the parties sought. Finally, as with all settlement negotiations, the elements of good faith and reasonable compromise are inherent to a successful MSA, constructed with care and attention to detail so as to be enforceable by the court should need arise.