July 28, 2023
I Was Forced Into a Divorce Settlement – Can I Get Out?
When a divorce case is settled before trial the terms of the settlement are contained in a written agreement that the spouses sign. A basic requirement of a valid settlement agreement is that it is “freely and voluntarily entered into.” To establish that, before the judge approves the agreement making it a court order, the judge will ask both spouses if they are freely and voluntarily entering into the agreement. Said another way, the settlement agreement wasn’t the result of duress, coercion or threat.
A Supreme Court case set the test. Duress exists where one spouse engages in misconduct that induces the other’s agreement because the other believed there was no reasonable alternative in light of the circumstances as he or she perceived them – there can be no exercise of free will. You might be surprised that duress claims were rejected in cases where one spouse was the victim of an abusive marriage, or was weakened by physical or mental illness, or claimed her lawyer pressured her to settle, or didn’t have the funds to continue the litigation. Cases based on fear of what might come out at trial or one spouse’s threats to make things difficult or deprive access to children were also unsuccessful.
There are only a few cases where a duress claim was successful. In one, the wife had suffered from depression, anxiety, and panic disorder. She took significant amounts of prescription drugs to deal with her condition. The husband had intimidated wife throughout the marriage and during the settlement negotiations. The husband was found to have used the wife’s condition against her to further his custody claim. He also got a financial advantage by threatening trial when he knew she couldn’t defend herself in a courtroom because of her condition and was too intimidated to have a lawyer represent her.
Keep in mind, if you tell the judge or the settlement agreement says that you are freely and voluntarily agreeing to the settlement, you will be taken at your word. You will have to overcome your admission as part of the heavy burden to prove duress. A consultation with an experienced divorce lawyer will help you determine if you can meet the burden to have the agreement terminated on account of duress.
Lisa J. Cappalli is Of Counsel at Cappalli & Hill, LLC and Freed Marcroft LLC. She can be reached at lcappalli@cappallihill.com or 203-271-3888. This column should not be construed as legal advice or legal opinion by Attorney Cappalli, Cappalli & Hill, LLC or Freed Marcroft LLC. The content is intended for general information only and you are urged to consult an attorney to advise you personally concerning your own situation and any specific legal questions you may have.
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