New Jersey State Bar Association
Bergen County Bar Association

Incorporating Mediated Settlement Agreement into a Divorce Decree


In a recent unpublished New Jersey appellate case, a mother appealed an order denying her motion to vacate a judgment of divorce or modify the settlement agreement that had been incorporated into the decree. The mother and father were married for close to 10 years and had two kids when they decided to divorce.

The couple went to a mandatory pretrial settlement conference during which they took care of their property and child custody disputes without a judge presiding over it. The attorney told the coordinator that a settlement had been reached, but the terms of this settlement weren’t placed on the record. Accordingly, a hearing to end the union was scheduled.

The couple followed the agreement. Their home was listed with a realtor and the father brought their mortgage current. The father’s attorney also sent the mother’s attorney a memorialization of the settlement agreement. The couple then disagreed about custody, and the mother took their home off the market.

At the hearing that had been scheduled, the judge was told they hadn’t signed the agreement. The father’s attorney said that the mother’s attorney had told him about minor changes to the mediated settlement agreement that had been memorialized, but that she hadn’t requested these changes occur before the hearing. The judge told the mother’s attorney to send a letter about what the concerns were. The mother’s letter asked for substantial changes and added certain provisions.

The father moved to enforce the existing agreement or to hold what’s called a Harrington hearing to determine whether there was enough agreement to enforce the mediated settlement agreement. The mother opposed this motion and claimed that there was a tentative agreement but it was subject to the father showing as much concert for their kids as she did.

A judge granted the father’s motion and rejected the argument that only a tentative agreement had been reached and it was conditioned on how the father treated the kids. She claimed there was no factual dispute about whether the parties had settled their disputes and that the face that the parties had already partially performed showed that the memorialized agreement was accurate.

The mother tried to adjourn the following hearing so she could file a motion to reconsider. However, the hearing went forward and a judgment or divorce was entered, incorporating the settlement agreement.

Forty-five days later, the mother filed a motion to vacate the divorce on the grounds that it incorporated an agreement to which she hadn’t agreed or to, alternatively amend it to address certain child care and property issues. The judge denied this motion.

The mother appealed both orders, but the first wasn’t timely. She argued that the father had failed to perform a condition precedent and had voided the agreement, that the terms weren’t agreed to by her, that fraud in the inducement is the basis for relief from the final judgment and attorneys’ fees.

The appellate court explained that to decide whether the parties reached an agreement, it needed to look at whether there was enough credible evidence to support the trial court’s order. The record didn’t show there was any condition precedent to carrying out the terms of the mediated settlement agreement. The lower court order was affirmed.

If you are considering divorce in Bergen County, and you are concerned about your children, it is important to retain an experienced and aggressive child custody attorney to seek an appropriate outcome. Contact the lawyers of Leopold Law at (201) 345-5907 or through our online form. We have attorneys available who can handle all aspects of a divorce.

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