Nesting agreements are a relatively new concept in New Jersey divorce law, and perhaps because of that, they are often misunderstood. This video explains what a nesting agreement is and is not, and its benefits and limitations.

What follows is a transcript of the above video:

“Hey, everybody. I hope you’re doing well. The topic of today’s video is going to be nesting agreements, and this is a relatively new topic. I’ve been practicing law since 2004, and I had never heard of these things. I was a family law clerk for my first job. I had studied family law in law school, and I had never heard of nesting agreements until the last two or three years. And they have become a popular topic of discussion more than they have become an effective tool in divorce negotiations and divorce litigations.

So this video is really going to be about what a nesting agreement is and why it is rarely if ever used and rarely if ever works. I know a lot of people call my office and they’d say, “Oh, I just read this thing about nesting agreements. It seems like it’s perfect for my case.” And I don’t like to be a Debbie Downer or a Negative Nelly or anything like that, but I usually have to talk them down and say, “Listen, you don’t understand. Here are the limitations of this sort of thing. And here’s what the problems are going to be.”

So let’s start with what it is. A nesting agreement is very simple to understand. In a typical divorce with children, what happens? The party split up. Dad goes and lives somewhere, and mom goes and lives somewhere and they don’t live together obviously, right? That’s why they’re getting divorced in the first place because they can’t live together. And the kids just spend some time with mom at her residence and some time with dad at his residence. And whether or not that’s the marital home, or if they’ve sold a home and now they’re living in two entirely new residences, it’s immaterial, right? Because you can do either way. You can have mom or dad keeps the marital home and the other side buys them out or they sell the marital home and they both get new places, separate from each other. And the kids separately spend time with dad at his place. And separately spend time with mom at her place. Pretty obvious. We all know that’s how it works.

A nesting agreement is the exact opposite of that, all right? A nesting agreement is where you basically will keep the marital home. And mom and dad will spend time switching who gets to live there. They will together go out and get a separate residence, like an apartment or maybe a house or something like that. I guess they don’t have to get it together. I guess they could get two separate ones, but now you’re dealing with three residences. So typically they’ll go get an apartment together. And in week one say dad lives in the apartment and mom lives at the marital residence with the children. And then in week two, they switch off. You can create any schedule you want, but the idea is the kids are staying in the same location.

Rather than the kids going back and forth, the kids stay in the same location and mom and dad go back and forth. And I understand the idea behind this, right? When you get divorced, you don’t want to visit that on the children, or at least you want to limit how much it impacts their life. So if they get to at least stay in the house they’ve grown up in, maybe that gives them some sense of solidarity and it eases the burden a little bit.

All right, the problem is this never works. And it never works for a few reasons. First of all, you have to understand this has to be done by agreement. That’s why it’s called a nesting agreement. The court will never, ever, ever impose one of these things. No judge, I’ve never seen a judge impose a nesting agreement. I’ve spoken to, I don’t know how many attorneys, we’ve never heard of it happening. It’s something that you and your spouse have to agree to. And it’s not just even agreeing to it conceptually, there are a lot of things that go along with it.
It’s not just agreeing that this is a good idea. Then you have to go agree to what apartment you’re going to get together. And who’s going to pay for that and how that’s going to be furnished? And you have to agree to the schedule between the two of you. And it’s probably got to be convenient to both of your jobs. You have to agree that this is something that’s desirable for your near-term and medium-term future. Because if both of you are going to be divorced from one another, odds are at least one of you is going to want to start a new life with someone else at some point. And guess what, mom’s new boyfriend or dad’s new girlfriend or future wife or whatever, they’re not going to want to be part of some nesting agreement where they’re switching residences every two weeks or every week or anything like that.
People want to move on with their lives. And so there’s usually a situation in divorce where maybe one side wants a nesting agreement, but the other side just say “No, I want to be done with you.” And if they could, if you guys could agree to all these things in the first place, and that’s what’s going to require, it’s going to require basically a lot of agreeing and a lot of sharing. Then you know, those people typically aren’t getting divorced in the first place, right?

This requires you to still maintain some semblance of marriage, believe it or not. And usually, and this is not a gender thing, but I’m just being honest about what usually happens. What I hear so much from women is they don’t want to be controlled. I say, what is the impetus behind this divorce? “Oh, he’s so controlling. He just wants to control me. Everything, he wants …” Well, that person who’s leaving the marriage because they don’t want to be controlled anymore, they’re not going to want to do a nesting agreement. They just want to be done. And that’s true for both sides.

So the biggest obstacle to a nesting agreement is the word agreement, that you guys have to agree. And by the way, not just about the immediate things, because if you’re going to keep the marital residence, you have to agree now who’s going to be responsible to pay for the upkeep and the taxes and the maintenance on that residence? And then how do we sell it? And when do we sell it? And who do we list it with, and what price do we list it for? Guys, it creates all sorts of things that basically, I don’t want to say it keeps the marriage alive, but it keeps the marriage open and far too open for I think, far too many people to make it practical.

A divorce is about just being done with one another in so much as it’s possible. And that’s an ugly thing to say, but that’s just the reality of it. And yeah, if you have kids, you still have to interact with one another. But the problem with these nesting agreements is people still have to be too much a part of the other person’s life and people don’t want that in general. And they especially don’t want to be controlled by the other person. So that’s why these nesting agreements tend not to be successful.

Hey look, if you and your spouse can work it out, that’s great. I’m happy to help you with that and put it through, and that’s wonderful. But you have to understand, there are a lot of obstacles to it. And the greatest obstacle is the other side has to want to do it just as much as you.
So anyway guys, that was just a brief overview of what a nesting agreement is. Not a complicated topic at all. If you want to talk about this with me or you want to discuss any other divorce related issues, I’m always happy to do a free consultation, just call the number below. We’ll set something up.

I’d also like to encourage you to watch some of my other videos. Even if you don’t want to hire an attorney, I think they’re very educational and informative and will help you understand the divorce process a lot better. All right guys, thanks for hanging around. Good to see you, take care of yourself.”