My ex and I used the Rosen DIY service to complete our separation agreement. In the agreement we stated I would keep the house and refinance it giving her half of the equity. It’s time to close and the bank sent her some documents to sign. She didn’t understand them enough so she took them to an attorney. Now her attorney is stating that our agreement isn’t worth the paper it is written on: I beg to differ. It is signed and notarized by both of us. She is attempting to re-write significant portions of the agreement. I am inclined to tell the attorney go away and that she is only going to force anger and frustration between two people who amicably agreed to the contents of our agreement and who currently have a very positive relationship in parenting our children together. In the end she could force us both into court. So what do I do?
You currently have a binding and enforceable contract if both of you signed the separation agreement and both signatures were notarized. You can threaten a breach of contract lawsuit if your wife violates portions of it or does not do something that she is required to do in the separation agreement. Your separation agreement cannot be amended without the consent of both parties.
It is possible that your wife could file a court action or counterclaim against you to rescind the separation agreement on the grounds that it is unconscionable, it was executed during fraud, duress, undue influence, etc.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Thanks! I would think that the language we have in the agreement would mitigate a counterclaim.
“Each of the parties acknowledge that he or she has read this Agreement and understands its contents and provisions; that it is a fair and reasonable agreement to each of them, having due regard to the conditions and circumstances of the parties hereto on the date hereof; that each has signed and executed the Agreement freely and voluntarily and without fear, compulsion, duress, coercion, persuasion or undue influence exercised by either party upon the other or by any other person or persons upon either.”
Hard to say you were under duress or undue influence.
Her attorney doesn’t agree with certain things like our language about my providing of health insurance for our kids…“Father will be responsible for paying the health insurance for the minor children so long as it is available at no or nominal cost through their employment.” She wants it to state more that I will provide it regardless… basically even if it was extraordinarily expensive because I had to obtain an independent policy outside of an employer.
She identified a few things we left out, like how we account for our two kids for tax purposes, but as I understand it, I don’t have to agree to her changing ANY of the existing document. I would agree to her adding in things that were missing that should have been there.
You are correct that the language you cited would make it very difficult for her to claim that the contract should be rescinded.
You don’t have to agree to any amendments to the separation agreement. However, note that for child support, there is nothing stopping either of you from initiating a child support action in court or going to the local child support agency regardless of child support terms being in the separation agreement. Because it involves minor children, the courts will still hear a child support issue but will give consideration to the terms agreed upon in a separation agreement.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.