Divorce and Marital/Property Settlement Agreements

By Santo Artusa on May 22, 2019

In a divorce, you have the right to a trial and you also have a right to enter into marital settlement agreement that sets the terms of the divorce. This permits parties to enter into an agreement that they want instead of having a Judge enter an order/orders or a Judgment, that you have little input after a potentially long divorce case and trial. A property/marital settlement agreement can address anything you want (essentially). The agreement can address: property division/equitable distribution, alimony and/or alimony waivers, child custody, child support, parenting time and other marital related matters.  We have written 3 page agreements and in other cases, agreements of 100 pages or so. You should aim for an agreement that you understand.

Why Should Someone Enter A Marital Settlement Agreement instead of going to Trial? Many people feel that they have nothing to lose by going to trial and family court, however, they are wrong most of the time. A trial can can you the exact opposite of what you may be seeking. A trial gives you a very little chance to achieve what you think is fair because divorce and family law is guided by case law, not fairness. On the otherhand, a marital settlement agreement gives you the chance to give input on the issues that are of the utmost importance for you: your children, your assets, your debts, your living expenses, child support, alimony and time frames on how to handle certain things.

Does the Judge read the agreement? Does the Judge have to approve of the agreement? 

No. The Judge only makes sure that you: 

  • Are not under duress
  • Not under the influence of drugs or alcohol
  • That it is your signature
  • That you read and write the English language
  • That you had a chance to review it and that your attorney answered all the questions necssary for you to understand all of the terms
  • If there are alimony or child support payments, how will these payments be made? direct or through child support probation?
  • That there are no side agreements
  • That the agreement covers all topics related to the divorce
  • That you have a right to a trial and that by making this agreement, you waive that right.

So as you can see, you are allowed to agree on anything you want. 

What happens if one party does not honor the terms of the agreement? 

If a party does not honor the agreement, that party can file a motion to enforce litigants rights. That motion will address the potential violation and you can seek sanctions and counsel fees for being forced to file that enforcement motion. 

If there is a change in circumstances, can I address that in court after the divorce? 

If you have a significant change in circumstances and you did not agree to anti-lepis language, you can file a motion to show that there is a major change. For instance if you moved, and you want to change the parenting time, you can possibly change it. If you lost your job and you can prove that you tried to find work, that you tried in good faith to obtain new employment, a Judge might change your alimony payments or child support payments. However, a change that you now want alimony after you agreed to waive it forever will not be permitted so be careful about signing the document with regard to this issue. 

How should we calculate child support? 

You can calculate child support by using the New Jersey Child Support Guidelines but that is if you and the other party make less than approximately $170,000 which many individuals in New Jersey do not qualify to use (many couples in New Jersey earn over $170,000). While you can use the guidelines, you can also make an agreement as to child support as you see fit. While you can make an agreement as to child support, you should enter your respective incomes into the agreement so that if you need to revisit the issue, you will know how it was done and if you need to change it in the future you can or a Judge can. 

Do I have to pay alimony?

The parties can waive alimony if they believe they can live without it or they just do not want to pay or receive alimony. 

Is alimony tax deductible? 

Thanks Trump! It was and now it is not. Many individuals are now stuck paying alimony without this key deduction. 

Do we both need lawyers? 

No you do not, but you should. 

So I hope this blog has helped you to understand property settlement agreements in New Jersey. If you have a divorce case in New Jersey, give us a call on 973-337-9643 to discuss the issues in your case. Until then, stay positive and appreciate what you have. 

-Santo

 

 

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