Written by attorney Michael D. Fluke

Top 4 ways to get out of a marital settlement agreement

I get countless inquiries from individuals who went to court ordered mediation and in two or three hours reached and signed an agreement settling all of their issues. After a couple of days, they want to get out of the Agreement.

First, remember, a Marital Settlement Agreement is a contract like any other. Once you sign on the dotted line, you are pretty much stuck with it. The law presumes that we are all adults of sound mind and have the ability to enter into legally binding contracts. Therefore, if you want out of your contract, the burden is on you to show by clear and convincing evidence that the Marital Settlement Agreement was signed as a product of fraud, duress, coercion or unconscionability:

1. Claiming fraud to get out of marital settlement agreement

Fraud is maybe the easiest, (if any of these matters can be considered easy). Fraud is just how it sounds. While most Marital Settlement Agreements include some language saying that you are satisfied with your understanding of the other party's financial disclosure and you do not require any further disclosure, this will not excuse affirmative and gross financial misrepresentations by the other party. For instance, if one party has provided a financial affidavit that completely fails to mention great amounts of money stashed in offshore accounts, and you had no reason to know of this, that would probably constitute fraud. Be aware, if the other party can show that you knew about money, even if that money was not listed in any disclosure, your fraud argument may not be successful.

2. Duress as a factor for setting aside marital settlement agreements

Duress is an external factor causing you to do something you would not have otherwise done. The classic example is signing a document with a gun to your head. However, duress is not open to a broad interpretation. Parties threaten one another all of the time. To prove duress, you must show that the threatening party threatened with an act that party had no legal right to do. Threatening violence can be Duress, threatening to go after full custody or the majority timesharing, probably not Duress.

3. Arguing coercion when throwing out a settlement agreement

Coercion is a bit less clear. Certainly all of the factors of Duress would be considered Coercion as well, but there may be other facts that may rise to the level of Coercion. To show Coercion, one may not have to go as far as showing that the other party threatened something they did not have a legal right to do. Courts have considered compulsion by "moral forces" to possibly constitute Coercion. I suppose a party getting the other party's friends or family to alienate or gang up on the party may constitute coercion in some circumstances. Of course, these moral forces cannot be just a matter of trying to get you to do the right thing. You have to show that these outside forces have overcome your mind of free though or volition to the extent that you have entered into an Agreement that you would not have ordinarily entered. Still not an easy thing to prove.

4. Unconscionability as a factor for dismissing the agreement

Finally Unconscionability may be the hardest argument to make. The law presumes that you know what you are doing when you enter a Contract and that you have a good reason to do it. For example, in Florida, the court is going to determine if the Agreement is unreasonable. Sounds easy! It's not. Unreasonable does not merely mean that one side got more money than the other. Basically, one has to show the court that the Agreement is so unreasonable that the aggrieved party will not be able to survive. Before the court even makes such a finding, the court is going to look into all the reasons one may have entered into such an a Agreement. If the court can find a any valid reason you signed such an Agreement, you are probably going to lose.

Challenges to getting out of a marital settlement agreement

Unfortunately, none of these are easy things to prove. With fraud, duress or coercion, the factor that often weighs heaviest with the court is if there were lawyers or a mediator present. As a lawyer or a mediator, there is an obliagation not to allow individuals to sign an Agreement if there is any indication that it is not being signed freely and voluntarily. The court may also inquire if there was back and forth negotiation. Setting aside a mediation agreement is one of those rare instances where courts have required a mediator to testify. I have even convinced a court to force the former lawyer of a party to testify regarding the negotiations that took place.

Setting aside a Marital Settlement Agreement is one of the hardest things to do in Family Law. The deck is stacked against you and although you certainly have the right to represent yourself in court, I do no recommend trying to do this yourself. I would encourage you to contact an experienced Family Law practitioner immediately.

*This guide is a very basic overview and is not meant to be a complete summary of the law. There may be changes in the law or arguments that have not been tested in the appellate courts. Please consult an experienced Family Law attorney to discuss the specifics of your case.

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