WHEN THE INK IS DRY, IT’S DRY

Guilderland, NY – In matrimonial cases (like most lawsuits) the parties will reach an agreement that will be either put on the record in open court or put in a document such as a separation agreement.”  These agreements are contracts between spouses that resolve their issues including property and debt distribution; custody; and spousal and child support.  The terms of agreements can be worked out directly between parties; through attorneys or using alternative dispute resolution such as mediation or collaborative divorce.  Once an agreement is finalized it guides the terms of a divorce.  Generally, it is incorporated, but not merged, into a judgment of divorce which means that it can be enforced both through the judgment of divorce and as a separate contract.  

What happens if you sign an agreement and then change your mind?  There are very narrow avenues to set a separation agreement1  aside:

A separation agreement may be set aside based on evidence of one parties’ overreaching, fraud, duress or a bargain so inequitable that no reasonable incompetent person would have consented to it…

To prove fraud, “The proponent must establish (1) misrepresentation of a material fact, (2) [knowledge of wrongdoing] (3) justifiable reliance (4) injury or damages”2 

Marital agreements are examined with a higher degree of scrutiny than most other contracts.3   The law and public policy hold:  

Marriage being a status with which the State is deeply concerned, separation agreements subjected to attack are tested carefully. “A court of equity does not limit inquiry to the ascertainment of the fact whether what had taken place would, as between other persons, have constituted a contract, and give relief, as a matter of course, if a formal contract be established, but it further inquires whether the contract (between husband and wife) was just and fair, and equitably ought to be enforced, and administers relief where both the contract and the circumstances require it” 

In other words, the law provides that there is a fiduciary or high degree of accountability between spouses to be fair and honest with each that is not required in a contract between “strangers”. 

Even with the higher standard, it is still public policy to allow parties to freely contract.  Therefore, an agreement between spouses does not need to be fair or “equitable” but does need to be free of fraud, duress, or coercion.  [T]o prove legal duress, a party must adduce evidence that a wrongful threat precluded the exercise of the party’s free will”4  

There is an old saying in the legal field “a good settlement means everyone is unhappy.”  Why?  Because it shows there has been  give and take to reach a meaningful compromise.  While  you may not be “happy”  you do need to make sure that you understand what you are agreeing to and realize that  this is the most important contract of your life. 

Leyla Kiosse

Leyla Kiosse

Leyla A. Kiosse is a partner at Tabak & Kiosse, LLP, a law firm located in Great Oaks Office Park (near Crossgates Mall). Along with her partner (Margaret Tabak), Attorney Kiosse counsels clients on all matters related to matrimonial and family law. A Guilderland native, Attorney Kiosse received her undergraduate degree from Union College and her law degree from Albany Law School. If you have questions about a matrimonial or family law issue, contact Attorney Kiosse for a consultation by calling 464-4095 or by visiting the firm’s website, www.tklawllp.com.