The Property Settlement Agreement In New Jersey—What It Is And How It Works
To finalize your NJ Divorce, you must have a Property Settlement Agreement.
Also known as a Marriage Settlement Agreement (MSA) or “divorce agreement,” the Property Settlement Agreement (PSA) is a document usually between 20 and 50 pages long that articulates all of the issues that have been defined and resolved in mediation. This is the most important document to come out of mediation. It memorializes all of your decisions and sets forth all of the terms of your divorce.
Even though it’s called a Property Settlement Agreement, this agreement covers much more than the division of property or equitable distribution of property—it’s also about child custody, parenting time, division of assets (including personal property, real estate such as the marital home, retirement assets and pensions, and businesses), alimony, and any other additional issues that must be determined in furtherance of divorce or dissolution of marriage.
Relevant issues that are not discussed in your PSA are neither governed by the court nor are they protected—it’s as if there is no agreement in place at all for these issues. It’s critical that all issues of import are addressed in writing.
This means that any “side agreements” or verbal agreements between the parties are not legally protected. If they’re not included in the Property Settlement Agreement, they cannot be enforced. For example, If your spouse says, “I will give you extra help [financially] whenever I can, provided I can,” you have no legal guarantee of receiving financial support under those terms; specific amounts and periods of support must be properly set forth in the Property Settlement Agreement.
Make sure that financial terms as well as all other points upon which you depend are explicitly delineated in your agreement.
How Specific Can A Property Settlement Agreement Be?
A Property Settlement Agreement clearly details everything to which the parties have agreed. However, these agreements aren’t only about money or custody. Your agreement can identify and clarify other matters concerning your divorce that you feel are important.
An Example: The Holiday Schedule
Parents are encouraged to spell out a detailed holiday schedule that illustrates not only the factual schedule, including pick-ups and drop offs, and who is responsible for transporting the children when and where, but also their parental intentions. Most agreements include how parents will alternate time during certain holidays, often annually, so if one parent has parenting time during Thanksgiving one year, the other parent will have parenting time during Thanksgiving the following year, and so on. However, when parties are able to clearly and thoroughly define the holidays of importance in their family and the parameters of the holiday itself (does Thanksgiving include the succeeding weekend?) later conflict can be preempted.
Creative solutions also emerge and are secured in writing. Staying with the Thanksgiving example, parents may decide to share the long weekend, or alternate whomever has the children for the actual day, the other parent celebrates with the children for the remainder of the weekend. In high conflict cases, defining pick-ups, drop offs, even what constitutes a weekend – (does it begin Friday after school or Saturday morning?) can help things move smoothly for everyone once the agreement is in practice.
As with so many things in mediation, this discussion provides parents a fresh opportunity to protect what is working and explore ways to improve. When the children’s best interests are central, parents often identify the importance of children continuing to spend certain holidays in a manner consistent with what they counted on in past years. If the father’s family always has a big Fourth of July picnic, parties might agree that the children should continue to participate in that annually. If the children spend Independence Day with the father, perhaps they will spend Memorial Day annually with the mother, developing a new holiday tradition.
Sometimes parents who would otherwise design a shared holiday schedule are unable to do so because of their current situations. If the father’s job requires him to work most holidays, so that the mother has custody for all holidays in the near future, it is important that the parents’ shared intention of equal holiday time is articulated in the agreement. Language could be included that when Dad’s work situation permits, the schedule will be adjusted to reflect equal holiday time. If this is not expressed in the agreement, the temporary schedule could be interpreted as reflective of the parties’ immutable intention.
A Property Settlement Agreement documents all the terms of the divorce in a binding contract. But a well crafted agreement can do much more than that. It can avert future conflicts and confusion and serve as a road map for life after divorce.
Is The Property Settlement Agreement Permanent? What If We Have Issues We Can’t Resolve Before Completing The Divorce?
While it is best to resolve all issues before completing the divorce and writing and signing the Property Settlement Agreement, reality tends to be less tidy. In certain circumstances, parties may opt for including clauses that require revisiting certain aspects of the agreement at a defined future date. If necessary, the parties may wish to meet with their mediator to revise the agreement and, if needed, file an amendment or addendum with the court.
Life is dynamic. Divorcing people cannot be expected to have all other areas of their lives cemented in place any more than anyone else. For instance, if you or your spouse are finishing a doctoral degree, the location and pay of your initial job may be unpredictable and largely beyond your control.
Imminent changes often do not allow a prediction, but they can be built into the agreement. In the example above, we know basically when the degree will be earned, so we can write a clause into the agreement stating we will review the agreement at that time in light of the new information and changed circumstances.
The thorough Property Settlement Agreement lets you come up with innovative solutions to problems tailored to you. For instance, instead of selling the house and splitting the proceeds, the agreement could say that one person stays in the home for 5 years until the children graduate from high school.
There are few either/or situations—there’s more breathability in the mediated marital settlement agreement than an agreement produced in an adversarial divorce.
What if parties fail to revisit the agreement at the time designated by the Property Settlement Agreement? Whatever has been in place will continue unless and until the parties elect to reevaluate the term(s) of their agreement. The status quo reigns in the interim.
What Is The Process Of Creating A Property Settlement Agreement?
When you have an uncontested divorce (which we do through mediation), developing your Property Settlement Agreement is a streamlined process. By cutting out court intervention, we drastically reduce the cost and time commitment needed to come up with the terms of the agreement.
We draft the Property Settlement Agreement for you. This ensures all the legal requirements of the agreement are met and the agreement will include the necessary elements. However, this is just the beginning of the process.
Once we have the draft of your Property Settlement Agreement, developed through and resulting from our mediation sessions, you then come to our office and read the draft. Before meeting with the mediator to review the agreement, each of you is provided a draft of the agreement and a comfortable setting to read the document. This is done “off the clock.” Clients arrive approximately an hour before their scheduled appointment and have the comfort of a contained space with the mediator nearby. Once clients have reviewed the agreement preliminarily, they will meet with the mediator for an in-depth review.
Together we go over any corrections, changes and open items. There might still be issues requiring further negotiation, and we address these at this time.
The Role Of Review Attorneys
Once the parties are satisfied that the Property Settlement Agreement has been finalized, we recommend that each spouse consult with separate, mediation- friendly review attorneys.
Good review attorneys respect the mediation process and the thoughtful work parties performed to arrive at their Property Settlement Agreement. Mediation-friendly review attorneys provide a fresh set of professional eyes, and can advise the individual of his or her best interests, (whereas the mediator seeks a collective win/win).
Mediation clients are able to seek outside counsel at any time, but many clients first utilize counsel to review the Property Settlement Agreement.
Once both parties have had the agreement reviewed, we then make any necessary changes to which everyone agrees. If you and your spouse disagree on some of the suggested changes, we simply continue the mediation process until we resolve the conflict.
When Does The Property Settlement Agreement Go Into Effect?
Procedurally, the Property Settlement Agreement goes into effect when you receive your Judgement of Divorce. The Property Settlement Agreement is incorporated into the Judgment of Divorce by reference and thus becomes binding upon the parties and enforceable by the court.
If you want to learn more about Property Settlement Agreements, if you need a Property Settlement Agreement drafted, or if you need to revise your current Property Settlement Agreement, we can help.