One thing to watch out for when incorporating a memo from mediation

Many parties today want to attend mediation in an attempt to be cost effective in their divorce. This makes sense, and meditation is often a successful tool utilized to reach an amicable resolution. At the conclusion of a mediation, many mediators will draft a Memorandum of Understanding, reflecting the terms discussed. Following receipt of the MOU, litigants should then proceed to an attorney to have a full Property Settlement (or Marital Settlement) Agreement drafted.

The PSA should include the terms as outlined in the MOU. However, it is not as simple as incorporating the terms of the MOU. The PSA should be more detailed and should be the controlling document. The parties in M.M. v. J.M did not retain counsel to represent them and unfortunately, they learned this the hard way.

The parties in this case attended mediation to resolve the issues incident to their divorce. They reached an unsigned written MOU reflecting certain agreements reached by them during the mediation. The following month, the parties entered into a PSA, which appended the MOU as an Exhibit.

The MOU stated that JM would pay MM permanent alimony. The PSA stated that JM would pay MM until the emancipation of the parties’ child.

Ten years after the parties’ divorce, JM filed a motion to emancipate the parties’ daughter and to terminate alimony, pursuant to the PSA. MM opposed the motion, relying on the MOU, that alimony would be permanent. The trial court denied JM’s motion for a termination of alimony based upon the parties’ MOU.

The Appellate Division reversed the trial court, indicating that the conflicting language of the MOU and PSA created an ambiguity which required the court to determine the parties’ intent regarding whether the alimony was permanent or could be terminated upon the occurrence of specified events. The Appellate Division opined that it was unable to determine the intent of the parties regarding the permanency or termination of alimony, and therefore remanded to the trial court to resolve the ambiguity.

Accordingly, if utilizing a MOU from mediation to draft a PSA, it is imperative to make sure the terms of the PSA are clear and controlling.

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