Signed Agreements: Divorce and Custody

My three year old reminded me of an important legal principle the other day. He reminded me why you can’t overturn an agreement once you’ve signed it.

How did he do that? Well, it wasn’t that sophisticated, of course; at least, not compared to practicing divorce law. But my husband has a habit of making deals with him, and it’s something my son loves. He’ll say, “Do you want to make a deal?” and they’ll discuss the terms, and shake on it.

The other day, I made a deal with my son. If I read him one more book, then he would get in his sleep sack and go to bed.
I did it. I read one more book. In this case, The Giving Tree, which is always difficult for me anyway. When it was over, and I had dried my tears, he refused to put his sleep sack on. “One more book?” he asked, manipulatively. He knows I love books. But we’re trying to teach him that he needs to stand by his word, so I told him, “No, buddy, it’s naptime now!”

He screamed. He cried. He insisted. “Just one more book!”

This is exactly why judges don’t interfere in the private agreements made between people. If you’ve written it down, if you’ve signed it – well, you’re bound. Why? There are a couple reasons, of course, and I’ll go into them in a bit more detail. But this is a big part of it. You can’t make a deal and then pull out of it after the other party has either complied in part or has begun to rely on receiving the benefit of that bargain.

It’s not fair or reasonable, in the adult world, to pull the proverbial rug out from underneath someone. The court assumes that, if you signed, that you, as a reasonable, rational, consenting, participating adult, understood what you were doing and agreed to the terms. There’s no “backsies” here!

Other reasons?

Sure! People are happier with the agreements they negotiate. There’s definitely something to be said for participating in your own divorce, weighing the advantages and disadvantages of a proposed resolution, and identifying your own priorities. Right? It’s not nearly as nice to go into court and have a judge force a resolution on you. At least, if you negotiate, you can identify goals and try to meet them. It may not be a perfect solution; in fact, we often say that, if both sides walk away feeling like they gave something important up, it’s the sign of a good and fair agreement. But at least you had the opportunity to weigh your own priorities and reach an agreement that at least somewhat reflected them.

In court, you’ll have no such opportunity. The judge will render a verdict and, after that point, there’s no room for negotiation. The judge doesn’t care about maximizing the value of your assets, either. One time, I had a judge tell a client of mine that if she and her husband didn’t agree on what to do with their car, he’d order it sold at auction and the proceeds split, even though he knew they’d get less for it that way than if they sold it privately. My point? You can lose a lot of the value of your assets that way!

You’ll also probably reach a resolution faster, especially in this day and age. The courts have been closed because of the judicial emergency from the coronavirus pandemic for awhile now, so there’s no telling how backed up the dockets will get. By settling things outside of course, you will likely have a final result more quickly, which will allow you to move on and, ultimately, divorce more quickly.

That’s not to say that it’s easy to reach an agreement! And, like any other big decision in your life, lots of people experience regret after signing. That’s not to say that it wasn’t a good decision or that they didn’t get a good agreement, though sometimes that can happen.
And it’s certainly a reason to slow down and make sure you’ve read and understand your agreement. You need to understand that there’s really not much room (if any at all) for turning back, and that you should treat it as a very, very serious transaction.

What reasons do people give for wanting to overturn their agreement?

1. But I changed my mind.

2. But I didn’t understand.

3. But I was forced to sign!

Unfortunately, it really doesn’t matter WHY you might want to overturn your agreement; it’s virtually impossible. The court will assume that you read the agreement, had a chance to ask questions, and understand it before you sign. The court CAN’T just cancel out agreements because people say later that they don’t understand, unless there’s some sort of valid argument about your level of sanity at the time that you signed it. Not understanding legal principles or potential ramifications to you (like your tax burden) will not be enough.

Your relationship may or may not be abusive. You may or may not have felt forced to sign. We hear that all the time. But that’s almost never enough to overturn an agreement, either! If you wanted to argue that you were forced, you’d have to prove two things – (1) that you were under duress (as in, he actually held a gun to your head), and (2) that the agreement was unconscionable. In my opinion, the unconscionability thing is actually harder, because it means that the agreement is so bad that no reasonable person would have signed it. So, if you receive a single benefit as part of the agreement, it’s not unconscionable. Your husband would literally have to receive everything, and you receive nothing at all, for the agreement to be found unconscionable.

Why? Well, if you receive anything at all, it could be construed (and likely would be construed) as a bargained-for benefit. Like, that one thing was SO IMPORTANT to you that you’d give up other things to keep it.

The court isn’t there to comment on how good or not good your agreement is, or to give you latitude for signing something that you shouldn’t. If you negotiate and sign an agreement on your own, the court will virtually always uphold it.

The best thing you can do? Consult with an attorney before you sign anything! If you have any questions or need any additional information, give our office a call at 757-425-5200.

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