Finally, the day has come. You have hammered out all of your issues and your mediator has drafted a Memorandum of Understanding (MOU). Are you finally done with your divorce? What happens next? If you are both happy with the MOU, then you are almost at the finish line, but not quite. You still have a few loose ends to tie up before you can finalize your divorce.
Completing the Marital Settlement Agreement
Unless both of you have signed the MOU, it is not binding. One of you needs to bring it to an attorney who will turn it into a formal Marital Settlement Agreement (MSA). Ideally, by this time you will each already have separate consulting attorneys who have advised you throughout the mediation. If not, you can hire attorneys just for the purpose of finalizing the MSA. The party whose attorney is not drafting the MSA should have their own attorney review it. When both of you are happy with it, you can sign the final version.
Sometimes one party wants to forgo having a separate attorney review the MSA and just wants to let the other party’s attorney draft it and move on. This is a risky way to proceed. An attorney can only represent one party in a divorce. If your spouse has an attorney and you do not, you will be at a disadvantage. You may save a few dollars in the short term, but there is a chance that you could miss something that will cost you much more down the road. It is also possible to complete your case without using any attorneys at all, but this too is very risky.
People sometimes make the mistake of thinking they are protected without using a separate attorney because their mediator is an attorney. The mediator, however, does not represent either party in any legal capacity. Only an attorney that you hire separately can assure you that the MSA adequately protects all your legal rights and interests.
Enforceability of the MSA
After both of you sign the MSA, it becomes a binding contract between the two of you. Beyond that point, if either of you wants to make a change, you will need a written agreement from the other party, or you will need to file a motion in court arguing that there has been a change in circumstances. If you want to be sure to stay out of court in the future, you can include a provision in your MSA that requires you to go back to mediation before either of you files a motion trying to change the terms.
At this point it is generally safe to begin carrying out the terms of the MSA, such as listing a house for sale and dividing up your assets. The family court still needs to approve your MSA before you can get a judgment of divorce, but courts nearly always approve MSA’s that parties sign after completing mediation. For some types of assets, you may also need to complete additional paperwork. Certain kinds of retirement accounts, for example, require a separate court order known as a QDRO to divide.
Completing the Formalities of the Divorce
The next step is to file your MSA with the court. You also need to be sure that you have completed the rest of the formalities required to finalize your divorce. The process for completing a divorce that goes through mediation is essentially the same as for any other uncontested divorce. For more information on the court process, you can consult this New Jersey Divorce Road Map. Attending divorce mediation allows you to skip most of the court process, but it does not take away the requirement of filing uncontested divorce papers. If you have not yet filed a divorce complaint and any other applicable paperwork, you can do that at the same time you submit your MSA to the court.
In most cases, after the parties have filed their MSA and their uncontested divorce papers, the court holds a hearing to finalize the divorce. A judge reviews the MSA and asks a series of questions to ensure that the parties understand it and that there has been no fraud or coercion. In some counties, it is possible to complete the divorce without a court appearance. Your attorney will know if this is possible in your county. You can also call and check with the court clerk yourself.
Even with the delays imposed by the pandemic, courts are moving quickly to finalize settled divorce cases. You can generally expect to have your final hearing or receive your final paperwork within about thirty days. Once you have your final judgment of divorce from the court, you really are done. Now you can start moving forward with your new life. Congratulations!
If you have questions about any aspect of the mediation process, contact a family law mediator at Weinberger Mediation Center for a free consultation.