One of the advantages of settling a divorce, rather than proceeding to trial, is the ability for the parties to craft specific compromised terms to their agreement. For common areas of matrimonial law, such as emancipation and alimony, seasoned divorce attorneys have what is referred to as standard language or standard terms. What makes terms “standard” is they are commonly accepted by both the Husband and Wife as fair and reasonable. For example, collateral alimony issues such as,conditions for modifiability or non-modifiability, conditions for termination, exceptions to and definitions for cohabitation, and the regular exchange of income information are often part of the “standard” alimony agreements. When entering into a Property Settlement Agreement the parties have wide latitude in crafting the terms that they feel are acceptable. Often times, the parties can, and do, agree to terms that the court could not award. While such terms may be common in many property settlement agreements they are not “standard” … at least not legally standard. The Appellate Division in Ducey v. Ducey, was critical of a trial court judge who ordered the attorneys to “. . . prepare an Amended Judgment of Divorce that sets forth the standard terms for termination of alimony.” This directive from the court came after the trial judge had a full trial as to all of the issues involved in the divorce. The trial judge's letter went on to state, “I ask that counsel prepare an Amended Judgment of Divorce incorporating the attached opinion as well as including the standard language regarding emancipation, cohabitation, etc.” The Appellate Division could not agree that this was proper. The decision continued, “We are unaware of any authority that defines ‘standard language' for these issues.” The appellate court summarized its holding by stating, “When trying a matrimonial matter, absent a stipulation from the parties, the trial judge must decide all collateral issues, including the incidental details associated with each issue.” It is important to remember when evaluating whether to proceed to trial or negotiate a settlement that the Judge will decide all of the issues not addressed by a stipulation or partial settlement. When a trial cannot be avoided for some issues it is often advisable to explore a resolution for those issues that can be agreed upon. This lessens the attorney fees associated with a trial and gives a measure of certainty to the eventual outcome. If you are contemplating a divorce in New Jersey seek the advice of a skilled divorce lawyer. You want an attorney who can help you decide how best to negotiate your agreement or when necessary which issues to bring to trial. Not every case should go to trail and not every case should settle. Knowing the difference is critical to a successful divorce result. The experienced divorce attorneys at DeMichele & DeMichele have a proven record of handling divorce cases and obtaining excellent results for their clients. Contact us, or call us at (856) 546-1350 for a confidential consultation.
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