It happens from time to time that a woman comes into our office with an already signed agreement. I won’t lie to you, it makes me die a little inside. I always read those agreements with a cringe, worried about what I’ll find in the next paragraph and on the next page.
Simply put, one of the biggest mistakes (perhaps the biggest?) you can make in a divorce case is signing something without at least consulting an attorney first. Unless you’re a real authority on Virginia divorce law and you’re pretty comfortable in your knowledge of what the court would and would not award you, it’s almost always advisable to talk to an attorney BEFORE you sign anything.
Why? Well, because, once you sign, you can’t un-sign. If you’re an adult and you’re not completely insane (I’m talking about, like, in an institution with a verifiable, documented history of mental illness kind of insane), you’re almost certainly going to be held to the agreement you signed. (For the record, I’m not suggesting that you are insane, or could be insane, but just delving into the only real scenario I know of where it might be possible that a judge would consider letting you out of an agreement you signed; you’d have to have REALLY been not in your right mind when the agreement was signed, and able to prove that.)
Why do courts enforce signed agreements so strictly?
Does that seem unfair? Probably. But you have to consider the court’s perspective on this. The court wants to encourage people to resolve their own disputes, rather than leaving it to the already overtaxed court system to do it for them. To the extent people can resolve their own disputes, it frees up the court’s time and resources to hear issues that can’t be resolved – personal injury trials, criminal cases (murder, rape, assault; you name it, they hear it), and so on. Besides that, people are generally happier with the results they participate in achieving; there’s nothing particularly empowering when a judge decides how everything will be handled, and you’re essentially left powerless!
Additionally, too, there’s public policy involved. In order to encourage people to resolve their own disputes, the courts have to support people who’ve entered into their own contracts. Imagine how bad it’d be for contract law if people got out of their agreements willy nilly. Or, worse still, if someone could partially perform, and the other person could then weasel their way out of compliance? No, that would be bad. So, courts enforce agreements. Very, very strictly.
For every bad contract that involves, there are hundreds (thousands?) of good ones that free up the court’s resources and allow private people greater control over how life-altering disputes are handled. So, I think it’s probably safe to say that the court assumes that signed agreements are binding, and will almost always enforce them. If you’re an adult and you’re of sound mind, you’re probably going to be found to have legitimately signed an agreement, even if it’s kind of bad.
Are there situations in which judges would overturn signed agreements?
Yes. Though you probably shouldn’t get your hopes up; it’s still super, duper hard! In order to have a signed agreement overturned, you’d have to prove two things:
1. That you signed the agreement under duress.
Duress means, essentially, that you had no choice but to sign the agreement. At the time that you signed it, you believed that some harm would come to you or your children if you did not sign. Like, your soon to be ex husband held a gun to your head and forced your hand to take a pen and sign your name to the agreement.
In addition to that, you also have to meet criteria number two. Yes, that’s right – just duress isn’t enough. There has to be duress AND unconscionability. Duress alone, or unconscionability alone, is NOT ENOUGH.
2. That the agreement was unconscionable. (Translation: the agreement is SO PROFOUNDLY TERRIBLE that no reasonable person would have signed it.)
To be unconscionable basically means that your agreement gave you nothing. Nothing at all. If you received any portion of the marital property, then that could be perceived as a bargained-for benefit. (Meaning, essentially, that you believed that receiving this one thing was SO IMPORTANT to you that you’d waive your interest in other things. Hey, who’s the court to judge what’s important to a person?)
You’d have to have waived pretty much everything – support, the home, retirement, etc. – in order for your agreement to count as unconscionable.
Are there any other reasons you might attack signed agreements in court?
Unclear or ambiguous signed agreement
Yes. It does happen sometimes. Especially where an agreement is unclear or ambiguous, and it’s difficult to tell what was intended by an agreement.
(Incidentally, that’s another reason to hire an attorney. Who cares if you save $2500 up front if you spend $10,000 later on trying to get your signed agreement upheld in court later on? Sometimes, as old Ben Franklin used to say, an ounce of prevention IS worth a pound of cure.)
If your agreement isn’t clear, or you and your husband have differing ideas about what it was supposed to mean, it might be worthwhile to consult with an attorney to get his or her take on it. There may be something in your agreement to attack on that basis.
When there is omitted property in signed agreements
Sometimes, too, when something is missing from a signed agreement, there’s a reason to go to court. If retirement was left out, for example, and the agreement is totally silent on it, then it may be possible to fix it…. It may not, though. It depends on what language is included in your agreement, so an attorney would need to look at the entire thing to determine whether there is anything that could be done.
When there’s a signed agreement, there’s never a guarantee. Signed agreements are notoriously difficult to overturn, though sometimes there’s something we can do to at least make the end result more palatable to you. Not always, though, so you’ll want to consult with an attorney as soon as possible to get a reasonable idea of what you can expect in your case, given the agreement that you’ve signed.
It’s probably not helpful to say at this point, but I’m going to say it anyway. It’s incredibly important to consult with an attorney before signing any legal documents, especially if something is unclear to you. The fact that you didn’t read, didn’t understand, or felt confused by the proceedings is really no defense. If you had the opportunity to seek counsel and you didn’t… Well, that’s something that can easily be construed against you in court.
It’s often cheaper and easier to talk to someone BEFORE an agreement is signed, too, rather than defending an agreement in court after the fact. If you have questions about a separation agreement, whether you’ve already signed it or not, or if you’re just ready to have one drafted on your behalf, give our office a call at 757-425-5200.