Negotiating a Comprehensive Divorce Settlement Agreement
When you decide to seek a divorce in New Jersey, the emotional implications may be staggering. However, ending a marriage is also a practical, legal and financial process with long-lasting consequences for both parties. Because the outcome of a divorce can linger over the long term, it can be crucially important to work with an experienced New Jersey divorce attorney to negotiate a comprehensive settlement.
How Does the Divorce Process Work?
When you file for a New Jersey divorce, this may be just the beginning of the process. You may go through the entire procedure in family court, where you and your family law attorney make your case before a judge in an adversarial proceeding against your estranged spouse. However, most people in New Jersey file for a no-fault divorce based on irreconcilable differences or separation, and they reach a settlement through a negotiated process involving both parties and their divorce lawyers.
A negotiated settlement does not necessarily mean that both parties have warm or friendly feelings toward one another. Even couples that have a difficult time communicating can still reach a settlement agreement, which often saves time and money for both parties as they move toward finalizing their divorce. In many cases, family court judges will encourage the parties and their family lawyers to negotiate and reach a settlement on the key issues, to be ratified by the judge.
Both parties can advocate for the key issues of importance to them and work to achieve a mutually acceptable settlement. By going through the negotiating process, a more informal process or even a structured mediation, both spouses may be able to focus on their key needs in the financial settlement as well as their plans for co-parenting. As well as preventing the wasting of marital assets on additional divorce expenses, the negotiations process can be an important precursor to future co-parenting. Parents will need to work together to negotiate a series of small and large decisions as they raise their children, and a negotiated divorce settlement can be the first step along that process.
Key Issues in a Comprehensive Settlement
A marital settlement agreement should include most of the following points:
- Financial details, including all relevant assets and debts
- Any agreed-upon alimony
- Child custody, parenting time and child support considerations
In most cases, child custody, alimony, and asset division are the key issues in a divorce settlement. By working with your New Jersey divorce attorney, you may be able to identify priorities during the dissolution process. For example, some spouses may strongly value staying in the marital home. On the other hand, a business owner may want to protect their company from sale or division as part of the divorce settlement. By identifying major targets and goals during the negotiations, each spouse can also identify the items on which they are willing to find a compromise.
Negotiations present a less formal opportunity for you to present your key items and interests. Unlike a courtroom setting, there are fewer rules and interruptions, which gives each party more time to say their piece. Because your family lawyer will be with you throughout the process, you can work together to negotiate a settlement in a less emotional way. In some cases, the lawyers may do most of the direct communication. When both spouses are comfortable with talking to one another directly about these issues, they may lead the conversation with their lawyers as advisors.
In other cases, lawyers may exchange written proposals with one another, and then each divorce attorney would share the other party’s proposal with their client. This process may be somewhat more formal and take more time, but it may be a better option for high-conflict situations while still staying out of the courtroom. Presenting each option on paper will also make the proposals clearer and easier to understand, allowing each spouse to consider the financial and practical aspects rather than their emotional weight.
Property Division in Divorce Negotiations
One of the first steps in negotiating property division during a New Jersey divorce is identifying which assets are separate property, belonging to each spouse alone, and which are marital property, eligible for division. New Jersey is an equitable distribution state. This means that marital assets do not have to be divided exactly in half in order for the outcome to be fair. However, the result must be fair and equitable to both parties leaving the marriage.
In order for each family lawyer to understand their negotiating position, it is important to review all of the key financial papers for the couple, including tax returns, bank statements, investment reports, cryptocurrency accounts, employment tax forms, business records, retirement accounts and other assets, as well as mortgages, credit card debts, other bills, and the level of equity in the marital home. Without proper information about the value of the assets at stake during the process of division, it is next to impossible to proceed with meaningful negotiations.
Retirement savings may be a challenging issue to deal with during a divorce. Especially if both parties are somewhat older, negotiating the distribution of retirement funds may be a key concern, especially if each may need to build up their savings after the divorce. After all, it costs more to fund two separate retirements than one joint retirement. In general, even separate retirement accounts accumulated during the marriage are considered marital property and subject to equitable distribution, although the mechanisms for this can be technical and complex.
Once your New Jersey divorce attorney has an overview and a comprehensive understanding of the financial picture, you can work with them to figure out your best and worst options at settlement and at trial, considering the equitable principles that will have to be part of any divorce settlement. At the same time, by understanding and considering the items that will be most important to your spouse, you will be able to consider potential negotiating positions in advance. The more you can consider which financial interests are most important to your spouse, the better prepared you will be to enter into a comprehensive negotiation. You may also wish to work with your divorce lawyer to identify your bottom-line negotiating position.
In more contentious negotiations, it can be good to set ground rules, including a neutral place for negotiations and a timeline for the process, in order to get both parties on the same page. If you are unable to reach a settlement after multiple attempts and it seems necessary to go to court, you can still proceed with litigation, but you may be able to reach a realistic settlement with some work with both parties’ lawyers and avoid the complications that come with a court process.
The Best Interests of the Children
A comprehensive divorce agreement will also include the parents’ vision of how to handle child custody and child support. While parents may come to an agreement about these matters, the agreement is likely to be scrutinized more thoroughly than financial settlements, as the family court is responsible for ensuring the best interests of the child are protected. Keep this in mind when negotiating the terms of the settlement, and remember that changing circumstances can lead to later motions to alter or modify child support and custody decisions.
Once your marital settlement agreement has been signed, it becomes a binding contract between both parties. In most cases, the family court will incorporate the final document into the divorce decree, giving it the power and enforceability of a court order.
Negotiating a comprehensive divorce settlement can help you and your spouse to come to an agreement and move forward from a divorce. Contact the experienced family law attorneys at Lawrence Law by calling 908-645-1000 or using our convenient, online form for a consultation about divorce negotiations at our Watchung or Red Bank, New Jersey, office.