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What can cause a signed marital separation agreement to be invalid?

Upper Marlboro, MD |

My spouse and I separated a few months ago and we both signed the agreement - which was drafted by a lawyer - in the presence of a notary. However, I now believe he regrets doing so and may be searching for ways to have the agreement voided. Is this possible despite his initial decision to sign?

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Attorney answers 4


Mainly those types of agreements are binding, but there are certain defenses such has fraud, cohesion, undue influence, and failure to disclose all the assets. You should discuss this with the attorney that drafted the agreement for you.


This is a fairly complex question and is very fact dependent. You will definitely need to consult with an attorney to discuss the particular details of your situation. That having been said, the burden would rest on your husband to prove a grounds for setting aside or modifying the agreement. If there is no clause in the agreement that precludes modification of the agreement, then he will need to demonstrate that a substantial and material change in circumstances has occurred since you entered into the agreement. This could include you suddenly earning substantial income or his losing his job or otherwise being unable to pay the obligation.

If there is a "non- modifiability" provision, then he would carry the fairly steep burden of showing that the terms are unconscionable or that he was induced to sign by a fraudulent misrepresentation on your part. He might also allege overreaching on your part if you in some fashion enjoy an unfair advantage or influence over him. Coercion of some form, or duress are also available to set aside an agreement. The fact that it might merely be a bad deal is not sufficient. There are other ways around it, but whatever the basis, it is not typically something that is easily accomplished.

David Raymond Mahood

David Raymond Mahood


Very nicely explained, and rather thorough.


The primary reasons are fraud, duress, or coercion.


It is extraordinarily difficult in Maryland for a party to a voluntary separation agreement to have the agreement set aside by the Court, if the agreement was properly executed and authenticated by the parties. Oftentimes, parties to separation agreements have “buyer’s remorse” and wish to have the agreements invalidated but, simply deciding later that you do not want to be bound by the terms of the agreement will not get you out of it.
In Maryland, there is a methodology to attack the validity of an agreement. This methodology was set out in the case Bell v. Bell which you may be able to find online or in a law library. For non-lawyers, the most important questions to determine whether an agreement might be set aside are:
1) Is the agreement “unconscionable”? An agreement may be set aside if it is found to be “unconscionable,” meaning that the terms of the agreement are so unfair to the party seeking to set it aside that it would be inequitable or unjust for the Court to allow the agreement to stand. By way of example, if the parties to an agreement had $1,000,000.00 in marital assets and one party received $990,000.00 of these assets under the agreement and the other party received only $10,000.00 of the assets, the Court might find that to be unconscionable and set the agreement aside. To determine whether an agreement is unconscionable is very fact specific but a finding that an agreement is unconscionable requires a significant variance in the amount of assets each party received.
2) Was the agreement procured by duress, fraud or coercion? An agreement may be set aside if a party signed the agreement under duress. For example, if one party tells the other that they are going to disappear with the parties’ children if they don’t sign the agreement, a Court might consider that evidence of duress or coercion. Additionally, if one party hid substantial assets from the other and failed to make a full disclosure of all the marital property before the agreement was signed that could be evidence of fraud. If a party does not have the mental capacity to understand the agreement, that could also be something considered by the Court.
Attacks on separation agreements are very fact specific, but, the important thing to remember is that in Maryland it is usually very difficult to prevail in such an effort absent unusual circumstances. Simply changing one’s mind or thinking that one could have gotten a better deal are not grounds for setting aside an agreement. And, also note that the agreement may contain an attorney’s fees provision allowing for an award of your attorney’s fees if you successfully defend a challenge to the validity of the agreement.

You also wrote that a lawyer drafted the agreement. If the lawyer was representing your husband, that would make it even harder for him to get out of it. If the lawyer was representing you, and your husband was given an opportunity to review the agreement and discuss it with a lawyer, it will be very hard for him to have it set-aside.

The response provided to this answer is not intended as legal advice and is for general informational purposes only. The posting of a response to this question does not create an attorney-client relationship between Stern & Associates and the individual who posted the question.

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