A vast majority of divorces are settled outside of court. In these cases, the parties will enter into what is called a marital or property settlement agreement, which is a written agreement between two spouses defining how property and assets will be divided or how much support will be paid and how it will be paid. These agreements often include custody and parenting time when there are minor children. Custody and parenting are the priority issues to resolve before the finances in a divorce. Custody and parenting revolves around what is in the best interest of the child(ren). Every parent has a right to enjoy a relationship with their children and a child has a right to spend time with both parents providing there is not clear issue of fitness. Every aspect of custody and parenting should be negotiated such as overnights, holiday, pickups and drop offs, vacation, school breaks, etc. People often suggest that specifics are not necessary, however, as a rule it is much better to put together a clear framework to follow and use as a guide. If both parties are flexible and work cooperatively with or without an agreement they should go smoothly. If the parties are not always on the same page – clarifying the terms and following the terms of the contract helps parties to avoid future arguments and is the basis also for enforcement if it is not complied with. This is often done out of Court. Parents often either 1) resolve between themselves, if they can; 2) use the Court appointed free mediator who typically helps resolve disputes. If they cannot resolve their agreement by consent using the first two methods they can hire a private mediator or proceed to make a Motion. The Court will usually order a custody evaluation if there is not agreement or if there are serious issues, i.e. substance abuse, mental illness, disabilities of children, etc. which require greater analysis.
Once an agreement is signed and filed by the Court, it is a valid contract. Ambiguous agreements lead to arguments which could lead to motions in the Court. Therefore, it is best to consider every aspect and put it in writing. Often parties will agree to a mandatory mediation clause before making an application to the Court.
A common questions that arises after an agreement is executed is that happens if you want to change it? If you want to change an agreement, the burden falls on you to show that there has been a change in circumstances warranting a modification to the agreement. A change in circumstance revolves around best interest of the child and how the child is affected. Being dissatisfied with your agreement or regretting it years later is not a basis to change it. Therefore, you must fully understand each term of the agreement when deciding custody and parenting issues. It is prudent to have a lawyer draft or review the terms of the agreement to ensure that it is fair and reasonable. The Courts favor stability and agreements that are knowingly and voluntarily entered into, especially if you were representing by counsel. To modify a custody agreement, the moving party has the burden of showing that there has been a change in circumstances warranting a modification and the modification is in the best interest of the child. In determining whether to grant these motions, the court is guided by the factors in New Jersey Stat. § 9:2-4:
1. The parents’ ability to agree, communicate and cooperate in matters relating to the child;
2. The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substance abuse;
3. The interaction and relationship of the child with its parents and sibling;
4. The history of domestic violence, if any;
5. The safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form and intelligent decision;
6. The needs of the child;
7. The stability of the home environment offered;
8. The quality and continuity of the child’s education;
9. The fitness of the parents;
10. The geographical proximity of the parents’ homes;
11. The extent and quality of the time spent with the child prior to or subsequent to the separation;
12. The parents’ employment responsibilities; and
13. The age and number of the children
A temporary change is not a basis to modify an agreement. There must be concrete evidence supporting a modification.
At Schenck Price, Tanya Helfand has been on both sides of these types of application. We have fought to change an agreement for reasons such as alleged abuse or unfit parenting and we have fought to defend an agreement because it is not in the best interest of the child(ren) to change. The well-being and best interest of your child is most important which is why having a skilled and experienced lawyer to represent you is indispensable. Please call Tanya Helfand of Schenck Price for a free ½ hour consultation. We handle cases in Bergen, Essex, Morris, Hudson, Union, Somerset, Sussex and other New Jersey counties.