Florham Park, NJ asked in Contracts and Family Law for New Jersey

Q: Can I make a legally binding agreement with my husband?

I want to separate from my husband. We have two kids, I don't work, and I would like to keep the kids. My husband has told me he would provide for me my rent, and a weekly amount of money, since I don't work and I need to take care of both kids.

Can we make a legal agreement where he commits to provide for certain expenses (like I said before, rent, weekly allowance, etc.) in exchange for me not asking for alimony, leave him see the kids on certain times, etc.?

Some clarifications and further questions:

- I'm not divorcing my husband yet.

- Would such an agreement be legal and enforceable by law?

- Would such an agreement be legally binding for me and my husband?

- Do we need a lawyer to make such and agreement legal?

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2 Lawyer Answers
Teresa L. Reichek
Teresa L. Reichek
  • Mount Laurel, NJ
  • Licensed in New Jersey

A: Thank you for your question. There is o such thing as legal separation in NJ. That being said you have options. You could file a non-dissolution action with the court and then execute a Consent Order with all the terms you and your husband agree on. You could also do a Divorce from Bed & Board, which is where you agree to terms such as spousal support, child support and a parenting time schedule and divide your assets but you do not get an absolute divorce. It would definitely be in your best interests to have counsel for either of these actions.

There are pros and cons to both of these actions. Both are legally binding and enforceable. You should consult with an experienced family law attorney to find out which option is best for your situation. Many firms, including mine, offer free consults to help you decide how to proceed.

Richard Diamond
Richard Diamond
  • Millburn, NJ
  • Licensed in New Jersey

A: My sense is that you are trying to figure out how to tiptoe through emotionally difficult terrain, fearful that if you push too hard, your husband will start making demands to share the children and then refusing to give you money for yourself and your children. You are the perfect person to sit down with a family law attorney to get educated. In the end, you may still decide to sit down with your husband and work out a temporary plan but being educated will help you to understand what is fair and what isnt. Let me explain.

Whatever you and he write down on a piece of paper today as to his parenting time plan with the children ( regardless of the underlining and use of bold print) will not be enforceable in a court setting in the future but the same applies to a court order entered today dealing with children. The law says that either of you have the right to seek modification of a custody and parenting time plan in the future " if there is a change in circumstance" presented. Regardless of what you and he agree to today, if things change in 6 months or 2 years time, a court always has the right to revisit custody and parenting time settings.

Lets assume though that your husband has threatened you, telling you that if you dont agree to a specific amount of money for support, he will go to court and demand that the children live with him 50% of the time and that you are afraid of him doing so because you dont believe that such an arrangement is in their best interest and because he has never handled that role before. During a consultation with a divorce law specialist, he can focus on your respective roles in the children's lives and give you a clearer sense as to whether such a threat has any teeth or is nonsense. Hypothetically, your husband leaves early in the morning for work and works long hours and comes home around 6-6:30 pm each night and has never been home to care for the children. If he threatened you, telling you that he would demand 50% of the time with the children, I would tell you that his threat has no merit. Conversely, if you and he had shared all of the responsibilities of the children on a daily basis with one getting the children up and ready and the other picking them up at the end of the day and sharing the cooking, bathing and school work with him nightly, it would be a very different setting.

As to him agreeing to give you a specific amount of money, I dont think any lawyer can answer you without knowing what his gross income picture has been over the past 2-3 years ( including overtime, perks, side employment and bonus monies paid) to figure out what would be a fair level of support to be paid and whether the amount being offered is consistent with that amount. hypothetically, he earns 200,000 per year and you have 2 children and he is offering to give you a total of 3500 per month or 42,000 per year for you and for the 2 children - I would start off saying that the amount offered is not fair nor reasonable and that he should be paying significantly more. Even if you dont know exactly how much he earns, family law attorneys can look at your spending pattern to reconstruct a framework of your lifestyle and look at the savings component ( including contributions to retirement accounts) to guestimate an income setting and match it up against the offer. Obviously, once a divorce is commenced, the lawyer will be able to get all of the underlying employment, bank and tax materials.

In the end, it makes sense for you to meet with a family law specialist to figure out what is your best option at this time. The offer being made may be reasonable and he may be offering to treat you fairly but you will not know until you talk with the lawyer.

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