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Is an Oral Agreement Enforceable When Divorcing?
As with anything that has to do with the law, the answer is yes and no depending on the circumstances. It has long been recognized that settlement in litigation is favored by the courts and settlements that are fair and just are enforceable. What happens if the parties agree orally to the essential terms but the agreement is never put in writing?
Under the case Harrington v. Harrington, 281 N.J. Super. 39 the court addresses the issue of two parties in a divorce reaching an agreement but a writing never materializes because one of the parties changes his or her mind. The Court in Harrington stated “…to be enforceable, matrimonial agreements, as any other agreements, need not necessarily be reduced to writing or placed on the record. And we recognize that “[w]here the parties agree upon the essential terms of a settlement, so that the mechanics can be ‘fleshed out’ in a writing to be thereafter executed, the settlement will be enforced notwithstanding the fact that the writing does not materialize because a party later reneges.” citing Lahue v. Pio Costa, 263 N.J. Super at 596, 623 A.2d 775.
In Harrington, the court concluded if an agreement is made and the essential terms of the agreement are recognizable, then the parties have a binding agreement regardless of whether or not the parties sign a piece of paper. Once the court has recognized a binding agreement, i.e. the parties are divorced without a written and signed Property Settlement Agreement deviation from the agreement requires proof of exceptional and compelling circumstances. 281 N.J.Super at 48. The party seeking a deviation from the order or judgment (which incorporates the parties’ agreement) must show that “…enforcement of the order or judgment would be unjust, oppressive or inequitable.” 281 N.J. Super at 48 citing Quagliato v. Bodner, 115 N.J. Super 133, 138, 278 A.2d 500 (App.Div.1971). See Schwartzman v. Schawartzman, 248 N.J. Super 73, 77, 590 A.2d 246 (App.Div.), certif. denied, 126 N.J. 341, 598 A.2d 897 (1991); Rosen v. Rosen, 225 N.J. Super 33, 35-36, 541 A.2d 716 (App.Div.) certif. denied, 111 N.J. 649, 546 A.2d 558 (1988).
Many feel that if an agreement is not in writing or signed he or she is free and clear of any obligation to the other party. As we see in the case of Harrington v. Harrington, this is not always true. When there is an issue as to whether or not an agreement was actually reached by the parties, the court may order a “Harrington Hearing” at which the judge will determine whether an agreement was actually reached by the parties. If it is determined an agreement was reached, the party attempting to renege on the agreement may be liable for the other party’s counsel fees.
At Lyons & Associates, PC we are here to help you with your divorce agreement so you will be protected in the future. Our divorce lawyers in New Jersey represent men and women throughout New Jersey who have unresolved family law matters, including reaching an agreement in divorce. We place a premium on personalized service and attention. For a private consultation, contact us by e-mail or call our offices at 908-575-9777.
Written By: ChrisAnn Wright, Esq.