Public policy in New Jersey has long favored the ability of parties to resolve their disputes (including elements of a divorce and parenting) on their own, so long as the agreements are fair and equitable.  But what happens when domestic violence is part of the relationship?  Often the victim in those relationships can not fairly negotiate under the threat of violence.  So which interest takes precedent?

A recent published appellate decision gives some guidance.  In O.P. v. L.G.-P. (A-0835-13T4), the court looked at two elements of a Property Settlement Agreement (PSA).  One dealt with some child support issues, which I will not deal with in this article.  The other dealt with a PSA provision requiring mediation before returning to court.  Subsequent to the finalization of the PSA, a final restraining order (FRO) under the Prevention of Domestic Violence Act (PDVA) was entered prohibiting the parties from direct communications.  Could the parties continue to mediate?

The court said no.  The court cited the PDVA itself (N.J.S.A. 2C:25-29(a)), which prohibits mediation when an FRO has been entered.  The court further quoted Lerner v. Laufer, 359 N.J. Super. 201, 216 (App. Div.), certif. denied, 177 N.J. 223 (2003), which stated, “”Mediation is now an accepted process in the resolution of family disputes except where an order has been entered under the [PDVA].” (emphasis added).