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Matt Rooney
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Matt Rooney

is a New Jersey attorney, former Superior Court law clerk, and noted commentator who focuses his practice on family law, municipal court defense, and personal injury matters. He was recognized by SJ Magazine as a 2018 “Top Divorce & Family Attorney."

Enforcing the Terms of a New Jersey Divorce Settlement Agreement When One Party Reneges

handshakesIt doesn’t happen with every divorce but certainly often enough that New Jersey courts have had to weigh in on the matter. Here’s the basic scenario: You and your attorney have spent tireless and contentious hours – or maybe even days – huddled in a cramped courthouse conference room or remote corner of the hallway working working out a settlement agreement with your soon-to-be ex-spouse and his or her attorney. Eventually, that happy moment arrives when it appears that all issues are resolved, and calculating child support per the New Jersey Child Support Guidelines is the last remaining task. The attorneys subsequently inform a relieved judge (who now has a few extra free days on his or her calendar!) that it’s all wrapped up, but in order to make it official, counsel need to return to their offices and edit up the property settlement agreement. The grateful judge says “Okay, great, I’ll see everyone back here in two days to put it through.” Then it happens. Maybe you gave your spouse a dirty look on the way out the door. Perhaps he or she simply had a change of heart, or a nosy friend got in his or her ear about how “unjust” or “unfair” the agreement sounds because, after all, she knows someone, who knows someone, who got a LOT more alimony. Regardless of the true causation, your attorneys gets the dreaded call within 24 hours from opposing counsel: “So, it looks like we don’t have a deal after all…” What’s your recourse when your spouse attempts to renege on a deal? It’s called a Harrington motion, a litigation tool derived from the 1995 Harrington v. Harrington decision, where an appellate court ruled that a verbal agreement could be enforceable and binding if the major terms are agreed upon. It’s a principle which has stood the test of time and it is distinguishable from NJ Supreme Court’s 2013 Willingboro Mall opinion where a verbal mediation agreement wasn’t deemed enforceable when one party reneged. The Harrington motion recourse for aggrieved parties was recently reinforced by the unreported (and therefore non-binding) Nakashian v. Nakashian decision:
“The evidence shows clearly and compellingly that the parties reached an agreement as to all major issues, advised the court of such, and asked to return once a signed settlement agreement was executed. That agreement included all issues of equitable distribution, alimony, and an agreement that child support would be subject to the child support guidelines. The agreement, as is often the case, was subject to the parties ‘running’ the child support guidelines numbers based on the settled alimony number, as well as the fact that defendant would be paying health insurance. Once the health insurance was factored in, as well as the social security benefit being paid for the children, the guidelines indicated there would be no further child support benefit. The court is convinced that this fact caused the plaintiff to ‘balk’ and renege on the settlement reached on September 5th.”
In that case, the Court gave settled parties a few weeks to reduce their courthouse agreement to writing; in the interim, one party’s counsel alleged that “only certain issues were discussed and consented to by the parties” and refused to let the reneging client execute a revised draft. The trial judge responded by bringing in both parties for a Harrington hearing, finding the agreement enforceable, and hitting the reneging party with a $12,000 attorney fee:
“[t]here was overwhelming bad faith on the part of plaintiff and her counsel in reneging on the agreement reached in court. But for their incredible assertions that no agreement had been reached, the Harrington hearing would not have been necessary. Accordingly, the court grants the application for counsel fees incurred by defendant from the date of October 5, 2012 going forward. […] In making this award, the court is aware that there is an economic disparity between the parties in terms of income but that they have each received their respective share of the equitable distribution of the marital home. The bad faith of plaintiff overrides an economic disparity.”
It’s a difficult situation no matter how you slice it. Clearly, it’s advisable to take the time to reduce the agreement to writing even if the parties are truly in agreement on all of the major points. In limited circumstances, it may be beneficial to put the major points on the court record before leaving the courthouse in order to eliminate the opportunity for a disaster. They key, of course, is obtaining experienced counsel who can not only negotiate an agreement that is in your best interests but also fight and win a Harrington motion hearing when it’s necessary. Experienced help is a quick phone call or email away. If you have any questions regarding divorce, settlement agreements, or have any other general questions regarding family law matters in New Jersey, please contact us online today or call (856) 546-1350 for a confidential consultation with one of our skilled attorneys.  
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Matt Rooney
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Matt Rooney

is a New Jersey attorney, former Superior Court law clerk, and noted commentator who focuses his practice on family law, municipal court defense, and personal injury matters. He was recognized by SJ Magazine as a 2018 “Top Divorce & Family Attorney."
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