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The Importance of Carefully Drafting Settlement Agreements in New Jersey Divorce Cases – Gilmore v. Salem

Settlement agreements often offer divorcing spouses an opportunity to resolve many or all of the issues related to their split in an effective and mutually agreeable way. It is important to remember that these are legal documents, however, and that they should be carefully crafted by an experienced family law attorney. A recent case out of New Jersey’s Superior Court makes that clear.

graduationHusband and Wife divorced in 2011, following some 14 years of marriage in which the couple had three kids. They entered into a property settlement agreement as part of the divorce. Husband and Wife acknowledged in the agreement that each was obligated to contribute toward their children’s future college expenses. The agreement noted that the couple had set up certain savings accounts to cover some of those expenses, as well as a portion of each child’s tuition. It stated that the remaining expenses would be paid proportionately, based on income and assets.

Wife returned to court in 2014, alleging that Husband had failed to live up to his end of the bargain and seeking an order to require him to pay more of their daughter’s (Daughter’s) college expenses. The judge instead ordered Daughter to pay $5,000 worth of the expenses herself and told Husband and Wife to split the remaining costs.


Reversing the decision on appeal, however, the Superior Court said the trial judge wrongly strayed from the property settlement agreement’s explicit terms. “New Jersey embraces the resolution of marital controversies through PSAs, which are voluntarily entered into and promote post-divorce stability,” the Court observed. Although a judge has the power to modify the terms of an agreement, the Court said he or she may do so only after finding that it’s warranted by a change in circumstances among the former spouses.

In this case, the Court said there was no such finding, The Court noted, in fact, that the trial judge didn’t even hold a hearing to consider the matter. Such a hearing would have been particularly helpful in this case, according to the Court, since the agreement’s terms weren’t entirely clear. In one section, it stated that the respective incomes and assets of both parents and each child should be considered in allocating college costs. In another, the agreement provided that the costs should be split based on the parents’ incomes alone. “The judge failed to consider this disparity, and on remand should consider whether the PSA contemplates only income itself, or whether the broader financial picture of the parties should be considered,” the Court concluded.

As this case makes clear, a person considering a divorce should consult an experienced attorney before proceeding and definitely before entering into any settlement or other agreements. The New Jersey child support lawyers at Helfand & Associates have more than 100 years of combined experience representing clients in a wide range of divorce, child custody, and support cases. Our lawyers work diligently to ease the stress on clients in what can be a trying process by building the strongest possible cases for the people whom we represent. Our offices are conveniently located in Whippany and New York City. We are happy to offer clients a free consultation in family law and other cases. Contact us online, call our New Jersey office at (973) 428-0800, or call our New York City office at (646) 213-9053 to set up an appointment with one of our attorneys.


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