The Pitfalls of Signing a Separation and Settlement Agreement

By Staff Writer

All too often clients come to their attorneys with a dilemma. Most frequently, without the assistance of an attorney, they signed a written Separation and Settlement Agreement. Upon further review and reflection, the Agreement is contrary to their interests and needs and the client wants to get out of the Agreement which they entered into with their estranged spouse.

Anybody contemplating a divorce or separation should be aware that, once an Agreement is signed, it is incredibly difficult to get out of. This is because written Agreements are seen as legal contracts. Provided that all of the legal requirements and formalities for preparing a proper agreement have been followed, the Agreement will be entitled to the protections of contract law.

Under the legal principles of contracts, a party cannot void an Agreement simply because they have had second thoughts or now realize that signing the Agreement was a bad idea. To vacate a contract, a party must meet strong legal requirements, such as showing that the contract was entered into by fraud, duress or that the person was mentally incompetent at the time of signing the Agreement. The showings that a party must make to meet such requirements are extremely stringent.

When you are going through a break-up, it is all too human to simply want the painful process to end. It is incredibly tempting to simply sign an Agreement in order to end the stressful ordeal of dividing your marital possessions and settling your other issues, such as custody, child support and spousal support. It may seem that you and your estranged spouse agree on all issues and that, entering into an Agreement without the assistance of counsel will save you money and expedite the process. It is crucial that you keep these emotions in check.

Separation and Settlement Agreements typically contain wording that, to the lay person, may seem relatively straight-forward and appropriate. In drafting Agreements, attorneys are all too aware that the usage of seemingly standard language can give one party a distinct advantage over the other. Unless you are legally trained to review Agreements and fully comprehend the impact of using certain language, you are not only at a disadvantage, but could be signing away important legal rights. If you wait until after you have signed the Agreement to have the terms reviewed by an Attorney, or if you are suddenly faced with the unanticipated consequences of signing a bad Agreement, it will often be too late to undo the damage.

Parties who have entered into bad Agreements often learn the hard way that, by signing an Agreement without the assistance of an attorney, they did not achieve the desired effect of expediting a resolution or saving on legal fees. If your spouse will not consent to modifying the Agreement, you will be faced with an expensive and time consuming Court battle to change the Agreement. Your chances of success in such an endeavor are not guaranteed and, after spending substantial sums in legal fees, you could be faced with the result that you will have to live with the terms of the Agreement which you all too hastily entered into.