Tag: divorce agreement

The “Penalty Rule” as a Way to Ensure Compliance with a Divorce Settlement in NJ

Although there may be an MSA that has been signed by both parties and clearly understood, that doesn’t necessarily mean that the penalty provisions within it will be approved in court.

Appealing to Penalty Provisions in Divorce Agreements in NJYou and your ex are in the final stretch, breathing a sigh of relief because your divorce settlement is over. But is it?  Unfortunately, it may not be the end of the process. In some circumstances, former spouses do not follow the divorce agreement, and they have to go back to court because one ex has violated the other’s rights by not following the agreed-upon settlement.

Purpose of a Penalty Provision in a Divorce Settlement

A penalty provision in a divorce settlement is a clause in the MSA (Marital Settlement Agreement) that penalizes a party for not completing all of the statutes in the agreement.  For example, if the father has to take the children to school every day at 7 AM but frequently is late, affecting their attendance scores, he is obligated to pay $40 for every day he is late. But if his ex is late getting the children ready for school, she is required to pay the fine.

Divorces and MSAs can include penalty provisions to prevent any breaches of the agreement. The penalty usually calls for the breaching party to pay their ex’s legal fees if the incident merits going to court.  Until recently, the courts haven’t given much credence to this practice, taking the power out of its ability to deter a breach in the agreement.

Role of NJ Courts in Penalty Provisions

The jury is still out when it comes to penalty provisions.  They are popular with many couples who want to have more control over whether or not their ex completes what is stipulated in the Marital Settlement Agreement (MSA). Still, there are some circumstances where the court will not support the provisions.  The MSA is not the same as a traditional contract for the court. For example, if an ex is behind on child support, a penalty provision that sets a daily fine of $50 for every day the payment is late, the person affected is the child, a minor, and therefore unable to enforce the provision.

Learning from Holtham v. Lucas

After five years of marriage, the couple entered into an MSA to resolve their divorce. Although there was a prenuptial agreement, other details had not been included, and the MSA was necessary to tie financial loose ends such as property and insurance issues. The couple agreed to follow the prenuptial agreement as stated in the MSA and acknowledged they voluntarily accepted making the MSA agreement, and it was therefore legally binding.

The MSA indicated that any obligation Holtham did not effectuate that was stated in the agreement, he would be obligated to pay his ex-wife’s legal fees needed to pursue the matter and a daily fine of $150 for every day the action was not completed.

Holtham was an extremely affluent man and certainly had the means to pay any fine. That being the case, he still did not pay the car note or sign over a car’s ownership to his ex-wife.  He did not deny his two-week tardiness after Lucas filed a motion for his non-compliance but said he would not pay any penalties because his ex-wife owed him money in the fees.  Opposing Lucas’s move, he declared the daily charge was not enforceable.  The trial court applied the 4-month penalty finding that Holtham was perfectly able to pay but refused to do so because there were sections of the MSA that he felt were unfair.

What is a Penalty Provision in a NJ Divorce Agreement? Holtham took his case to the Appellate Court, which was somewhat surprising. Lucas had retained custody of the vehicle while waiting for the note to be paid and the ownership to be transferred. She had no proof which justified a loss of $18,450 ($150 daily), she was not owed compensation for emotional distress, and the sanction was unreasonable given the damages were not proven.

However, the court said that the penalty rule does not bind the family court. Lucas was not subject to financial harm, but because Holtham decided to fly in the face of their settlement agreement, his deliberate breach was intentional and without justification coming from someone of great wealth who had signed the MSA knowingly and aware of the penalty provision, thusly breaching post-divorce peace.

Interpretation is Key for Penalty Provision Enforcement

This tells us that it isn’t always just the written agreement that can determine a divorce settlement. Sometimes an analysis of the documents and their intent can provide a more equitable decision. If penalties are included to cause the other emotional or economic harm, the court can modify the agreement to be equitable and fair.

If You Think Your Ex Has Violated Your Agreements, Contact Divorce & Family Lawyers representing clients in Marlboro, Sea Girt, Freehold, Brick, and towns in Monmouth and Ocean Counties

Finalizing a divorce is akin to running a marathon.  But eventually, all of the I’s will be dotted, and the t’s will be crossed.  You will move forward with a new life full of possibilities. Sometimes, exes do not follow the MSA, which means you must go back to court. Having your rights violated and experiencing the resulting damage can be exasperating. At the Bronzino Law Firm, we have the skills to make sure your rights are protected.

Even in this emotional situation, you can count on us to listen to your concerns and speak with you directly, confident that our years of courtroom experience will provide you with the representation you deserve. Our divorce and family law practice covers Stafford, Lacey, Beach Haven, Middletown, Toms River, Monmouth Beach, Sea Bright, and Southern New Jersey.

Call our Sea Girt or Brick offices at (732) 812-3102 for a free confidential consultation today or fill out our online form to make an appointment right away.  You can’t afford to wait for your future to begin.

Failed Mediation and its Aftermath in Monmouth and Ocean County NJ

Why do some mediations fail, and what happens next in the case that mediation falls through in a New Jersey divorce?

Unsuccessful Divorce Mediation, Reasons and Possible Next Steps in NJGetting a divorce in New Jersey is a stressful matter. In addition to the emotional processing both spouses have to do about the end of their current reality, there are also loads of logistics that must be addressed promptly in order to finalize the divorce. These logistics include the division of marital assets, spousal support payments, child custody and parenting time agreements, and child support payments.

When spouses work together collaboratively to come to a divorce settlement, the mental, emotional, and financial outcomes are more positive. In order to maintain this collaborative and amicable environment while details of the divorce are ironed out, divorcing couples often hire a mediator. Contrary to popular belief, a mediator isn’t there to help the couple get back together. Rather, they are a neutral third party, often a family law attorney, who helps facilitate negotiation of the terms of the divorce with the couple and their lawyers. The mediator is able to support the negotiation of a settlement when a couple’s desire to work together is active – and also their views about how best to divide their assets and their time with shared children are aligned. Unfortunately, mediation isn’t always successful for couples.

How Can I Support a Successful Mediation Process in Toms River?

In addition to entering mediation with a collaborative spirit, there are preparations that you and your family law attorney can undergo to provide a better chance for a satisfactory divorce settlement negotiation via mediation. The primary preparation you and your divorce attorney can discuss is which elements of your marital property are the most important to you moving forward, and which other elements you are willing to let go of. How flexible are you to give and take when it comes to the types of assets that you could be awarded? Equally important is that you discuss with your family law attorney your non-negotiables when it comes to the custody arrangement you will agree to for your children. When you and your legal team have a solid understanding of where you stand going into mediation, valuable time, energy, and money can be spared.

What are Some Possible Causes for the Failure of a Divorce Mediation?

There are two main reasons that divorce mediation doesn’t work. The first is that one or both spouses are so emotionally triggered by the divorce that they are unable to cooperate with the process in a collaborative way. The process of valuing and equitably distributing marital assets – let alone determining what the children’s path will be moving forward – is impossible to achieve when emotional distress prevents spouses from looking objectively at the situation to come to a fair agreement. Being in an emotional space in which each spouse can see that the divorce represents the ending of a legal agreement that opens the door for a more aligned future, and that there are material issues to address in order to get there, is essential for mediation to work.

The second reason many mediations don’t work is that each spouse of the divorcing couple has a completely different idea of what is a fair split, and which elements of the marital life they are unwilling to part with. Disagreements about the children’s custody also often lead to a failed mediation.

What Happens When a Divorce Mediation Does Not go as Expected in NJ?

A failed mediation can cause spouses to lose sleep, the ability to focus on their lives and professions, and money as additional measures must be taken to legally dissolve the marriage. While mediation generally takes between two and three months, the divorce court process is a much longer process, typically lasting around a year. That’s a lot of time, energy, and money to have to add to the divorce process! Unfortunately, mediation doesn’t always go as expected, and the couple can’t come to a suitable agreement.

What are Possible Next Steps After a Failed Mediation in New Jersey?

Brick New Jersey Divorce and Mediation AttorneysWhen mediation fails, there are a couple of next steps that a couple can take. The first is to continue the divorce negotiation process using only each spouse’s divorce attorneys. If helpful information has been brought to light about each spouse’s non-negotiables and needs through the mediation process, there is a possibility that negotiation can continue out of court.

Another option is to enlist the support of experts in the field, for example, a child psychologist if an area of impasse regards determining child custody.

Finally, litigation is the step that divorcing spouses take when they cannot reach an agreement out of court. In this case, a New Jersey Superior Court: Family Part judge reviews the case based on a number of state-approved factors to make a determination regarding the division of assets, custody arrangements, child support, and alimony. This is the most costly outlet, as in-court resolutions often take much longer, resulting in high attorney fees and other costs.

Contact a Brick, New Jersey Divorce and Mediation Attorney Today

A skilled family law attorney is an essential asset in an amicable divorce. Are you separating from your spouse and want to do so out of court? We’ve got your back. We successfully represent clients Lakewood, Middletown, Toms River, Howell, Jackson, Marlboro, and across Ocean and Monmouth Counties to help them move forward with their lives in a swift and resourced manner after a divorce.

At Bronzino Law Firm we get the nuances of divorce through mediation. Contact us at (732) 812-3102 for a free consultation to discuss your case, and let us help you resolve your divorce in a positive way.

Why Hire a Skilled Lawyer in Divorce Mediation Monmouth and Ocean County NJ

The following case story will show you how important it is always, but especially in divorce, to have a good lawyer who ensures that all the documents in a divorce are consistent with each other.

Why Hire a Skilled Lawyer in Divorce Mediation Monmouth and Ocean County NJThis story has to do with a mediated divorce, one with a Memorandum of Understanding (MOU) generated by a divorce mediator. In a mediated divorce, each spouse takes the MOU to their individual divorce attorney to review it, to explain all aspects of the MOU, and to discern whether or not it is a fair and equitable agreement. When that part of the process is settled, an attorney then drafts the official divorce settlement.

What if the MOU is not consistent with the divorce settlement?

This story will reveal why you should work with an attorney who specializes in divorce.

Let’s call the case David vs. Marie. They had three children and a long history of marital difficulties. In 2010 they went to a divorce mediator, who wrote up an MOU that contained certain agreements they had reached during mediation. Then they executed a Settlement Agreement and attached the MOU to it as an exhibit. David and Marie then proceeded with the divorce without representation by counsel, and a final judgment of divorce was handed down in 2011.

Terms of Memorandum of Understanding (MOU)

The MOU stated that the terms described within it would not bind the parties until it was incorporated into a settlement agreement prepared by attorneys and signed by both parties. Regarding alimony, the MOU stated that David would pay Marie permanent alimony of $100 per week. It also stated that the alimony would terminate upon either party’s death or Marie’s remarriage.

Settlement Agreement and the Memorandum of Understanding

The Settlement Agreement stated that the parties would be governed by “the terms of this Settlement Agreement and the Memorandum of Understanding.” Here’s the catch: The Settlement Agreement also contained a provision in the section on alimony that the youngest child reaching the age of 18 and subsequently being emancipated would trigger the termination of alimony. This condition was not mentioned in the MOU.

In 2016, David filed in court to emancipate their youngest daughter and terminate child support and alimony. The judge granted David’s request to emancipate the daughter but denied his request to terminate alimony.  In his reasoning, the trial judge stated that the Settlement Agreement and MOU revealed the parties’ intent that the alimony was to be permanent.

Appealing an MOU

David appealed the decision. He recognized that the MOU did not include the qualifying event (emancipation of the child) and that it stated only that alimony would be paid permanently. But he argued that “the Settlement Agreement, a subsequent and more comprehensive document than the MOU, does NOT state that alimony is permanent and had additional alimony termination language—that alimony would terminate upon emancipation of the child.”  He stated that the Settlement Agreement’s language took precedence over the MOU’s.

Marie responded by stating that the MOU was incorporated into the Settlement Agreement and that the Agreement should not be regarded as a stand-alone, separate document. She argued that she had specifically requested permanent alimony to be in her divorce agreement, and the subsequent MOU reflected that intention.

Consult with a Brick Divorce Lawyer

Appellate Division Examines Multiple Conflicting Document After Mediation

In its review, the Appellate Division cited the basic principles of contract law. First, the anchor of contract interpretation is each of the parties “as revealed by the language used, taken as an entirety.” A contract is therefore ambiguous if there is more than one way for it to be reasonably interpreted. In this case, because of the two different documents and two different interpretations, the Appellate Division found that simply examining the language of the two documents would not reveal the intent of the parties.

The Appellate Division held that it was necessary to examine whether additional negotiations took place after the mediation that may have led to an agreement for the termination of alimony. Without this, it ruled, it was incorrect to hold that the parties intended the alimony to be permanent.

The Appellate Division said it was not able to determine the parties’ intent and remanded the case for further proceedings focused on whether the parties, in fact, engaged in additional alimony negotiations after the initial mediation.

Consult with a Brick Divorce and Mediation Lawyer to Make Sure Your Agreements are Solid

That is the outcome so far. You can see that a good attorney, writing documents consistent with each other, could have saved both David and Marie a lot of time spent in court and money spent on attorneys to represent them in court.

At Bronzino Law Firm, our divorce attorneys are experienced in providing our clients across Point Pleasant, Brick, Wall, Sea Girt, Spring Lake, and the greater Ocean and Monmouth County Areas the necessary support to ensure a fair divorce settlement.

Don’t leave yourself open to these sorts of difficulties and expenses. Instead, consult the divorce experts at Bronzino Law. Please fill out the online form or call us at  (732) 812-3102 to learn more about your legal options.

Collaborative Divorce Attorneys During the Pandemic Brick and Sea Girt NJ

Collaborative Divorce is a more amicable approach to divorce and is usually a less expensive option.

Collaborative Divorce Attorneys During the Pandemic Brick and Sea Girt NJThe COVID-19 pandemic has caused all of us to endure challenges and change. And people who feel they must divorce their spouse or partner face unique challenges because of the pandemic.

One is that the family courts in New Jersey are operating remotely or in a minimal number of socially distanced, in-person proceedings. The courts are largely hearing only the most urgent matters, using Zoom or telephone conferencing.

There is an alternative to the usual divorce litigation that works well in the present circumstances—and will in the future. It’s known as Collaborative Divorce. This is a more amicable approach to divorce and is usually a less expensive option.

This process works when spouses can work out an agreement, sometimes with the support of attorneys, mediators, and other divorce professionals. It’s a “team” approach instead of a “battle of the experts” approach, which is what traditional divorce litigation often ends up being.

We find that divorcing couples generally fall into one of three groups. The couples hire attorneys representing opposite sides, with everyone trying to get everything they can get.

Then, the people think they can agree on dividing property and sharing custody who might only need help to prepare the legal paperwork to finalize the divorce.

We find that many couples fall in the middle and need the help of a mediator to come to a final settlement. Collaborative Divorce is a benefit to all concerned. It can keep you out of a high-conflict, high-stress situation,

In Collaborative Divorce, both parties must hire attorneys that have been trained specifically in Collaborative Divorce. Each party meets separately with his or her own attorney, but the four people also meet regularly.

Typically, both spouses and their attorneys agree that the attorneys will withdraw from the case if a settlement is not reached and the spouses decide to go to court. Most Collaborative Divorce attorneys do not go on to represent the people they’ve worked with in court. Spouses will have to find new attorneys, who are likely to be more adversarial.

Who Else Can Participate in a Collaborative Divorce?

Collaborative Divorce might also involve participants who are not attorneys but experts in their fields, who can provide helpful insights in their area of expertise. These experts might include:

  • A divorce coach
  • A child custody expert
  • A neutral financial expert, like an accountant
  • A mortgage expert.

After the Collaborative Attorneys have been hired, they, in turn, will choose a Divorce Coach, who is a mental health professional and who will help everyone navigate the process. Both parties meet with the Divorce Coach, either separately or together, before the first meeting with the Divorce Coach attorneys to gather information about family background and dynamics. Then it’s the Divorce Coach’s job to recognize any potential issues during the Collaborative meetings. All these meetings can be held virtually.

After the parties meet with the Divorce Coach, the first Collaborative team meeting is held. There, the parties review and sign a written participation agreement in which they agree not to go to court to resolve their issues. Instead, the parties, and their attorneys, and any other professionals deemed it necessary to hold a series of meetings to resolve all their issues. Once an agreement is reached, the attorneys then apply to the court for the final dissolution of the marriage.

What Are the Benefits of Collaborative Divorce?

Collaboration can reduce the conflict and expense of divorce in five ways. You and your spouse can:

  1. Stabilize your situation using a temporary agreement.
  2. Have the opportunity to exchange all necessary information voluntarily.
  3. Agree on ways to cut down legal expenses and simplify the process.
  4. Negotiate a settlement that works for you both.
  5. Agree on how the post-divorce issues will be handled.

There is an additional benefit to taking the Collaborative Divorce process. Not only is the settlement going to be reached with much calmer nerves, but also the parties retain control over the timing of the process. The parties—not the court—decide when the next meetings will be scheduled. In this way, they set the pace of their own divorce.

Consult with a Wall Township, NJ Divorce Attorney Today

Whether you use the Collaborative approach from the beginning of your divorce or for only part of it, you will save money and time. More importantly, you will get through the divorce process with less stress.

In the midst of a pandemic, when litigated cases are practically at a standstill, and there’s a huge backlog of court cases, Collaborative Divorce is an excellent option for parties seeking to resolve their differences and settle their divorce. It will work very well after the pandemic subsides too!

Our attorneys at Bronzino Law Firm, LLC have the Collaborative Divorce training. Call our Brick office at (732) 812-3102 to learn more.

Tips on how to Manage your Estate Plan in Monmouth and Ocean County Divorce

Estate Plan Attorney educating on your financial well being in Sea Girt, Spring Lake, Ocean Township, Red Bank, and across the Jersey Shore

Tips on how to Manage your Estate Plan in Monmouth and Ocean County DivorceDivorce has implications for every aspect of a person’s life, from their emotional, mental, and physical health to their financial wellbeing. During and after a divorce, most people reassess elements of their lives and plans for the future and refine them to align with their new trajectory. One financial rearrangement that may need attention is the estate plan. An estate plan doesn’t only strategically prepare you for your future – it affects your children and determines many important elements of their wellbeing in the case of your death or that of your ex. Understanding how the divorce could and does affect the myriad aspects of your estate is essential in the early post-divorce process. So what are immediate steps to take involving updating your estate plan after finalizing a divorce? Read on to learn more.

Update your healthcare proxy

The healthcare proxy is the person who can legally make decisions for you if you are injured and cannot make decisions for yourself, and you likely don’t want your ex maintaining that legal power. Change your healthcare proxy to a trusted friend or family member.

Change your power of attorney

As is the case with the healthcare proxy, it is important to withdraw your ex’s legal role as attorney’s power if they are so named. In their place, name a trusted friend or family member.

Share your divorce agreement with your estate planner

Share your divorce agreement with your estate plannerYour estate planner has your family’s best interests and financial wellbeing in mind. As such, sharing your divorce agreement with them is an essential early step in the post-divorce process. Before the estate planner can help you update your estate plan, they need to know what your legal obligations are to your ex in the case of your death. What you can change will depend on what you must legally provide in the case of your death.

An estate planner can also check for holes in the divorce agreement that will adversely impact your financial wellbeing and that of your family, such as the impact of the divorce on retirement account beneficiaries and whether you are protected from having to pay state and federal estate taxes. The estate planner will review whether your ex can change beneficiaries and how your death would impact your children’s financial wellbeing as estate plans currently stand.

Change your will

There is a likelihood that you will no longer wish for your ex to be named in your will. If this is the case, it’s time to update it. The main revision will be removing your spouse from the role of executor of the will. Unless specifically desired, you do not want your ex to have power over your estate or trust.

Update your beneficiaries

There are numerous savings accounts and policies for which you have named a beneficiary. Retirement accounts, life insurance policies, and IRAs are just some of the accounts you will need to update if you don’t want your ex to maintain a claim if you die. Some states automatically wipe an ex-spouse from being a beneficiary, but this is not always the case. If you named your spouse while you were married, forget to update, and then die, the process of the desired or secondary beneficiary receiving the funds could involve litigation.

Consider a trust

Consult an experienced Estate Attorney in Brick or Sea Girt NJ to protect your interestsA shared life insurance policy will need to be addressed during the divorce proceeding. The person who owns the policy must pay premiums – yet they also can change beneficiaries. To ensure that your children are cared for in the case of your ex’s death, it may be wise to name a trust as the owner of the insurance policies to ensure that a steady continuance of payment of the policy continues for the benefit of your family.

A trust can also be established to ensure a steady flow of alimony and child support. The trust creator, called the grantor, makes payments into the trust based on its outlined provisions. If the grantor dies, the beneficiaries can receive funds without probate. There are also tax advantages to setting up a trust instead of other forms of handling alimony and child support.

Consult an experienced Estate Planning and Divorce Attorney in Brick or Sea Girt, NJ, to protect your interests

At Bronzino Law Firm, our team is skilled in handling all matters of divorce and estate revisioning for our clients across Sea Girt, Spring Lake, Ocean Township, and across the Jersey Shore.

Our unique approach ensures that your financial legacy is secure.

To meet with an experienced team member to go over your estate planning needs, please call  732-812-3102 to schedule a consultation at one of our conveniently located offices in Brick and Sea Girt or fill out the online form, and we´ll get back to you shortly.