Duress: Don’t Count On It in Virginia Contract Law

When women hear about the possibility of voiding a contract as a result of duress, they are usually excited. But the truth is that it’s probably easier to give an alligator a root canal than it is to prove to a Virginia judge that a contract should be overturned.

Duress is, broadly defined, a threat of harm made to force someone to do something against his or her will.

Duress is an extremely difficult thing to prove, because you have to show that your husband forced you (by threat or physical violence) to do something that you would not ordinarily have done. You also have to prove that what you agreed to was unconscionable. In court terms, that means that no reasonable person would have agreed to so bad of an agreement. Merely feeling pressure to sign, or learning later that what you got was not the best result you could have gotten, isn’t enough to show duress.

The court really likes it when private people settle their affairs between themselves. For one thing, no one knows the appropriate way to settle things better than the parties who are directly involved. It’s better for everybody when people can agree to resolve a situation in a way that is good for both sides. Usually, one side gives something they care less about up in exchange for something they care about more; it’s a bargaining process. For another, the court likes not having to do anything. The court’s docket is so backed up that it takes months to get in, even for a simple matter. Removing a few things from the docket is good, because it frees up the judge’s time to decide more important things. It also makes the people involved happier because the judge knows the least about the situation. No one is ever happy when the judge decides things. At least, when people are able to settle themselves, they feel as though they had some control over the situation.

Judges do not overturn contracts easily. Why? Because it would undermine our whole system of doing things. If people could agree to something and then go back and petition to have the court change their agreement, there would be no finality to anything. The court would constantly have to re-open old things–and no one who signed an agreement would ever feel secure in what they had bargained for. There has to be a limit to the amount of time a court spends litigating and re-litigating issues. Once you sign a contract, you’re pretty much locked in. It’s about fairness to both parties (neither should feel that their agreement could be under attack at any time, at the whim of someone else) and it’s about the stability of the system as a whole. Imagine what would happen if the court had overturned the contract of every unhappy person who had signed a contract that turned out not to be in their best interest.

I know that you feel your agreement is unfair. You wouldn’t be reading this article if you didn’t feel that way. As a lawyer, though, I have to tell you that, though it may be unfair, what happened to you probably will not rise to the level that would be required in order for the court to overturn your agreement. You’ll have to live with it, or convince him to agree to sign an addendum later on. I could tell you that this is a great case because contracts get overturned all the time, I could take your money, and we could go to court and litigate this issue–but we’d lose. You would have less money than you do now, and you’d still have this agreement.

I really can’t tell you how many women I’ve seen who have signed agreements that, later on, they really wish they wouldn’t have signed. They sign for all kinds of different reasons–because they trusted their husbands, because their husbands lied to them, because they didn’t understand what they were doing, because they thought it was only temporary, and even because they wanted to keep things peaceful and amicable. Without serious forcefulness (and I’m taking about him threatening to kill or seriously injure you or your children), there’s just not duress.

I know this is upsetting and frustrating to you, and I don’t want you to think that I’m not sympathetic to your situation. I absolutely am, and I wish there was something that could be done. The fact is, though, at this point, you can’t do anything different than what you’ve already agreed to unless you get him to agree to sign an addendum to the agreement. If you don’t agree with me, you’re welcome to seek the advice and counsel of another attorney. In fact, I encourage you to see someone else if you feel like they can give you a better answer. Doctors always advise you to get a second opinion, and attorneys are no different.

I suggest that you move on. You signed this agreement, and there’s very little that we can do now to un-do the damage, no matter how much we may want to. Let it go as best you can, and move on with your life. You’ve got a very bright future ahead of you, and you should concentrate on how you’re going to better your future, rather than dwelling on things in the past that you wish you could change. Concentrate on what you can control, not what you can’t.

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