One of the first things we tell women, both at our Second Saturday seminars on What Every Virginia Woman Needs to Know About Divorce and in our initial consultations, is that they should never, ever (and we mean NEVER) sign an agreement without having it reviewed by an attorney first.
Once you sign an agreement, you can’t un sign it later. It doesn’t matter if you didn’t understand, or you felt like you were bullied into it by your husband. It doesn’t matter if you didn’t read it, or didn’t realize what you were signing. A separation agreement is a legal contract and, as long as you are an adult with full legal capacity (meaning, essentially, that you’re sane), when you sign a contract it’s all done.
If you really think about it, from the point of view of a judge, it makes sense. Judges can’t go around overturning contracts right and left. If they did, no one would enter into an agreement by contract. No private people would have any incentive to settle their disputes between themselves. Instead, they’d go in front of the judge, and let him decide. Not only does the judge not want that, but, for the most part, you don’t want it, either. Trust me—if you have the ability to resolve a dispute yourself, you’d much rather have a say in it than leave it up to a judge (who, frankly, knows very little about you or your case).
If people were worried that their contracts would be overturned later, no one could rely on the contracts they had already negotiated. They would worry that they’d perform their part of the bargain, only to have the other side wiggle out of it – to their detriment.
So, long story short, judges really don’t overturn contracts. That’s why we advise our clients to take negotiations seriously, and only sign an agreement when they’re absolutely sure that they can abide by its terms. Read it, understand it, ask questions about it—do all of those things BEFORE you consider signing it.
Still, we have people in our office all the time who haven’t done any of those things. For whatever reason, they signed. And then they regretted it. And then they came into our office, crying, begging, pleading for us to do something about it.
We’re good lawyers. No doubt about it. We’ve represented women only in divorce and custody cases for over twenty years now. But even we cant re-write the law, as much as we might like.
“But it’s not fair,” we hear, time and time again. I wish that was a solid legal argument, but fairness has nothing to do with it. Especially if you were represented by counsel at the time that the agreement was entered into (and, most of the time, even if you weren’t), there’s very little chance of overturning an agreement.
Surely there are some situations where a judge will overturn a bad agreement! When might a judge throw out a bad agreement?
Judges almost never throw out bad agreements. Before you get excited, you should know that. Though there are sometimes small things we can do to help improve a bad agreement (more on that in a minute), it’s pretty unlikely that the agreement will be thrown out altogether.
In fact, most of the time when women come to us with agreements that they signed and wish they hadn’t, we tell them there’s very little we can do. Think about it. Though we could take the case, with very little likelihood of success, and fight over it, would it serve our client’s best interests? Considering the time and money involved, it’s rarely a good gamble. And we just aren’t comfortable adding insult to injury and spending tons of our client’s money to try and fight an agreement that’s probably going to be found to be valid.
If we WERE going to fight it, though, what would we look for? Well, in the rare (and super unlikely) event that a judge was going to overturn a separation agreement, what would he want to see? There are two main things a judge would be looking for:
1. The agreement is unconscionable.
Translation: The agreement is so bad that no reasonable person would have signed it. (Basically, in short, he got absolutely everything, and you got absolutely nothing.) It’s not enough to say that he got MOST things. If you received even something small, it could be interpreted by the judge to be a bargained-for benefit. In other words, you wanted that thing so much that you were willing to give up other things to get it. Even if whatever it was that you received seems insignificant, if you received something in exchange for signing the contract, it’s probably not unconscionable. Who is anyone else to say what might be important enough to someone that they’d give up their rights to other things to get it?
2. It was signed under duress.
Translation: He held a gun to your head, and threatened to kill you and your children. And you believed him.
To overturn a signed agreement, BOTH of these things would need to happen. Your agreement would need to be incredibly bad, and he would need to have forced you to sign it.
I’ve already signed a bad agreement. I regret it. I’m upset. What should I do now?
First of all, take a deep breath. Now that you’ve signed it, it’s time to take a step back and look at the agreement. Talk to an attorney. What is it that bothers you? What would you prefer to see? If you were getting to the real root of the problem, what is it that is making you feel like this is a bad agreement? Does the attorney agree? Is what you want something that you could have gotten?
A lot of times, people have buyer’s remorse after they sign an agreement. It’s like any big purchase you make. It sounds sensible at the time, but after you walk away, you start to overthink things. Is it bad? Could you have gotten better? Did you sell yourself short? For those types of answers, it’s a good idea to have an open and honest conversation with your attorney. Are you suffering from buyer’s remorse, or is it something bigger?
It’s possible that it’s not buyer’s remorse. It’s possible that you really did sign an agreement that isn’t altogether in your favor. It’s possible that you could have negotiated something better. So, now, what do to about it?
Like I already said, we don’t have a ton of choices here. We can’t rip up the agreement and start from scratch. There’s really no way at all to pretend like it didn’t happen. So, what now?
There’s only one option, and it’s not perfect. If your husband is agreeable, we can try to negotiate an addendum to your agreement.
What’s an addendum, and how does it work?
An addendum is basically an add on to a contract, that either changes, adds to, or modifies the obligations from the underlying contract. If you’re not happy, for example, about your spousal support award, we could try to re negotiate it so that you receive more.
The catch, of course, is that your husband has to agree. Just like with the separation agreement, there’s no agreement without both parties signing it. Since you already have an agreement in place, there might be no major incentive to him agreeing to do more, but sometimes it’s possible to modify the terms of your agreement.
If you’re interested in negotiating an addendum, you’ll probably want to talk to an attorney. It’s possible, though often not very likely, so you’ll probably want to get information before you take any other steps.
If you’ve signed a bad agreement, you don’t have a lot of choices. I know this isn’t at all what you want to hear, but unfortunately that’s the way the law works. If you have specific questions about your agreement, whether it’s as bad as you think it is, or whether you can negotiate an addendum to improve upon it, give our office a call at (757) 425-5200.