If you and your ex aren’t happy with your divorce settlement agreement, can you disavow it and renegotiate? Courts favor parties resolving their own disputes and will enforce their agreements in most situations. Therefore, it isn’t easy to reject an agreement and get new terms after signing. However, there are different ways to resolve these issues depending on whether one or both parties are challenging the agreement and are willing to negotiate.
One Side Disavows
Generally, a party can only challenge or seek to set aside a settlement agreement on the grounds of poor advice from counsel, fraud, duress or undue influence. These can be difficult to prove, particularly if the settlement agreement was allocuted. Divorce allocution is an extra process wherein the spouses state under oath and on the record that they are satisfied with the agreement and their attorney’s representation, not under the influence of any prescription or illicit drugs or alcohol and there was no duress or undue influence.
If the agreement cannot be challenged or set aside and a party refuses to comply with the agreement, the other side can either sue for breach of contract or seek post-judgment enforcement or post-judgment modification. A breach of contract action involves filing a new court action in a different court and is only used in certain situations, like when the parties no longer live in the state where they divorced.
A post-judgment enforcement action is brought to compel the other side to comply with the terms of the agreement. Post-judgment modification is sought to change spousal or child support where there is a substantial change in circumstances.
Both Sides Disavow
Where both sides want to discard the settlement agreement, the parties can go to court seeking to vacate the agreement. However, if they succeed, they have to relitigate or renegotiate from scratch. This is a costly and time-consuming process.
A better option is to try to renegotiate the objectionable terms. The agreement remains intact, but the parties agree to amend it as needed. A mediator and/or an experienced attorney can assist with finding a compromise. Settlement is usually the least expensive and time-consuming way to resolve conflicts.
If you need assistance with a post-judgment action, contact us to discuss how we can help you achieve a positive result in your matter.