The fact that you’re contemplating divorce undoubtedly represents some amount of despair. However, it also acts like a step to the next part of your life. Throughout the process, you encounter many choices. Among them, is whether you want to let the court make decisions regarding your future. For this reason, many couples elect to settle their divorce through voluntary mediation.
It takes a unique mindset to handle divorce mediation. After all, ending a marriage comes with its share of emotions – and, often regrets. However, there’s a reason that some say divorce mirrors the end of business partnerships. When you are your soon-to-be-ex make an attempt to work together, you may come up with the best solution for both of you.
In New Jersey, divorce mediation represents a form of alternative dispute resolution (ADR). Although arbitration is also considered ADR, there’s a difference. When an arbitrator hears a marital dispute, he or she has the authority to decide the outcome of the matter.
Meanwhile, a mediator oversees and leads you through the settlement process. The mediator is a neutral third party who helps you and your spouse talk out your issues and come up with a successful resolution. Often, this requires a great deal of compromise.
Clients choose mediation for a variety of reasons. Most recognize the problems with litigating divorce issues. For one, court trials take time and money. Again, they also mean leaving a judge to decide how your life will continue when the divorce is finalized.
In New Jersey, the courts may order mediation regarding particular issues. These include matters involving custody and parenting time. That said, you and your spouse could voluntarily decide to sit down with your attorneys and a mediator about other aspects of your divorce.
The end goal of voluntary divorce mediation focuses on the parties coming to an amicable resolution on what matters to them. Most often, this means working out the details regarding the distribution of assets and spousal support.
When you and your divorce attorney prepare for mediation, you collect all financial information pertinent to your case. You plan a strategic approach based on your understanding of your personal economic situation. Of course, your spouse does the same. Negotiation and compromise are the keys to successful mediation sessions.
If the parties resolve their concerns in mediation, the terms are committed in a Divorce Settlement Agreement (“DSA”), which becomes part of the Judgment of Divorce (“JOD”). So, what happens if the parties have compliance issues? How is the mediation agreement enforced?
The New Jersey Appellate Division recently dealt with enforcement of a DSA in Dumchus v. Dumchus. Although the case does not represent new law and only applies to the named parties, you may find it interesting.
Enforcement of Mediation Agreement
The Dumchus case falls into the category of post-judgment matters, as it comes after the final divorce decree. According to the record, Pamela and William married in 1985. Their divorce finalized in 2011 by way of a final judgment of divorce. The JOD incorporated a Divorce Settlement Agreement executed by the parties.
During voluntary mediation, Pamela and William came to terms on a number of issues. Among the requirements were that:
- William pay $7500 monthly in permanent alimony through wage garnishment
- Alimony terminates upon "the death of either party" or plaintiff's "remarriage or cohabitation. . . ."
- William maintain $1M in life insurance to secure alimony obligation
- Parties attempt to resolve any future disputes "by negotiation and agreement before using the court for any determination."
Problems started when William failed to pay alimony. The previously married couple returned to mediation with their attorneys and ultimately entered into a new written mediation agreement. With the exception of the revised terms concerning alimony, the DSA remained in “full force and effect.” Notably, the parties signed off on the express terms of the mediation agreement as “full and final settlement of their dispute.”
Pamela and William signed the new mediation agreement on August 10,2017. As part of the agreement, William was required to make a lump sum payment within 10 days. He never made the deadline.
In October of 2017, Pamela’s attorney filed a motion in court to enforce the mediation agreement. In turn, William’s lawyer cross-motioned and stated he wanted to renegotiate the agreement. Apparently, he retained new counsel who felt it appropriate to seek modification.
No Exchange of New Financials
In support of his request to further modify the mediation settlement agreement, William certified that the parties had not exchanged new financial information. Apparently, he changed jobs in 2014 and experienced a decline in earnings. Additionally, William indicated that he did not realize alimony laws changed until he retained a new divorce lawyer.
Interestingly enough, William further stated that he was just about up to date with his alimony payments at the time of the 2017 mediation. Despite his assertion, it remains unclear as to why he didn’t present documentation supporting this when the parties renegotiated their settlement.
Meanwhile, Pamela argued that the new mediation agreement already represented a $90K loss in permanent alimony in exchange for a large one-time payment. Neither party produced documentation regarding new financial concerns. Seemingly, since William should have presented them at that time since he cited the change in circumstances.
Ultimately, the motion judge agreed to enforce the mediation agreement as William did not demonstrate a change in circumstance since its execution just a few months prior. The Appellate Division agreed.
The case was remanded to the Appellate Division for a new order. Upon submitting his financials in support of the appeal, it appeared that William would be able to deduct money from the lump sum amount. This became necessary to give him credit for prior payments he made to Pamela.
Even if you’ve entered into a mediation agreement, there’s a chance you’ll need to go back to court. At the Law Offices of Sam Stoia, we assist clients in making post-judgment applications after their divorce. Contact our office to set up a complimentary appointment to discuss your circumstances.