If you signed an agreement that divides your property and/or provides for spousal support or child support and find that you are not happy with it, your options for changing the agreement are limited. In New York, courts favor allowing spouses to resolve their divorce disputes on their own, so you cannot simply change your mind after you agreed to a financial settlement. Courts will only set aside the agreement in certain circumstances which can be difficult to prove. These include the following:
Poor advice by counsel
You may be able to challenge the agreement if you can show you signed the agreement based on the bad advice of your attorney. However, typically, you must show that the attorney had drug, alcohol, mental health or other problems that affected his or her ability to provide appropriate legal representation as well as show that the advice given was unreasonable.
Fraud requires proof that your former spouse knowingly concealed or gave you false information about an essential fact, and that you justifiably relied on that misrepresentation and suffered damages as a result. You will also have to explain why you didn’t discover the fraud before signing the agreement and how you uncovered it now.
Duress and undue influence
You must show that you were threatened or coerced into signing the agreement and that you would not have done so absent such coercion.
Substantial change in circumstances
Child support can be modified if either parent has had an involuntary change in income by 15% or more or there have been substantial changes to the cost of raising a child or to a parent’s income. A substantial change in circumstances may also be grounds for modification of spousal support – particularly if there is a risk of you becoming a public charge.
Importantly, you will have an extra hurdle proving your case if your settlement agreement was allocuted. Divorce allocution is a process that spouses can request or a court often requires wherein the judge asks the parties on the record and under oath whether: they understand the terms of the agreement, they have no reservations regarding settling the actions according to those terms, they are satisfied with the agreement as best they can be, they are satisfied with their respective attorneys and the representation their respective attorneys provided them, they are entering into the agreement on a knowing and voluntary basis without duress or other influence, and the agreement sets forth the parties entire agreement.
If you go through this extra process, you are saying that you are satisfied with your attorney’s representation and there is no duress or undue influence. Therefore, seeking to set aside your settlement agreement when it has been allocuted will be much more difficult.
When negotiating and entering into a financial settlement, the best thing to do is to make sure you get good legal advice before agreeing to anything. However, if you have signed an agreement and want to challenge it, consulting an experienced divorce attorney is essential. Contact us to discuss how we can help you achieve the best result in your case.