Separation Agreement


#1

So the ex missus drafted an SA, I suggested some changes, and we both signed it in front of a notary. Now she claims it is invalid because she was “ignorant.”

How can I prove that she wasn’t? I don’t have any emails saying honey this is how much I’m worth. I know we should have worked with a lawyer on the SA, but it’s too late for that now. Does the burden of proving her ignorance fall on her, or is it up to me to prove that that wasn’t the case?


#2

Being “ignorant” isn’t an excuse to set aside a properly formed and executed separation agreement, which is why I always personally suggest to people on this list to get theirs reviewed by an attorney and discuss the ramifications BEFORE they sign. Your ex is SOL. At this point there are only a few ways that might result in overturning a separation agreement:

1.) Was she legally insane at the time/date of the signing? If so, she could get it overturned after she gets out of the asylum.
2.) Are any of the articles in the SA against the law? If so, she may have a case…for that article
3.) Was there a deliberate attempt by you to criminally defraud her? (And it would have to be something capable of resulting in a separate prosecution case for fraud.)
4.) Her own inability to perform any required obligation. (For instance, a SA is signed in good faith with the idea that a person would be able to pay $200/mth to the other party. A year later, the signer is hit by a bus, is now handicapped and on disability unable to make the payments since their income is now less than half of what it was. They can now file to dissolve the obligation due to inability to perform.)

5.) In articles where child custody and support are concerned, a court may always step in and change those particular articles governing custody and support in the best interests of the children. They are usually reluctant to do so without suitable evidence and enough of a change in circumstances.

Most well-formed SAs have severability clauses so that if for whatever reason one section/paragraph is declared invalid for whatever reason, the rest of the agreement is still in effect.

So, in short, it’s most likely an empty threat. I’d ignore it.

NOT AN ATTORNEY


#3

Ignorance isn’t a legitimate grounds to overturn a properly executed separation agreement.


#4

Thank you, Ryan and Athos!

I have read at a number of places that [quote]the only way an SA can be overturned by a court is if it can be shown the agreement was signed due to fraud, under coercion, in ignorance or with a lack of mental capacity.[/quote]

What does ‘in ignorance’ mean here? My ex-wife claims she was ignorant about how much money she was “throwing away” by signing on the SA. Does that count?


#5

It is her responsibility to do any necessary research about your finances…to demand any necessary tax records, pay stubs, bank records, prior to signing the agreement. Ignorance because she just signed on the dotted line without taking the time to review stuff isn’t grounds for overturning a contract.

Basically, all a SA is is a contract, plain and simple and many of the rules regarding contract law apply. So, regular “ignorance” isn’t really an excuse. Now, being “ignorant” because someone was deliberately defrauding you, is a separate issue. Criminal and willful behaviour that defrauds the signor resulting in their ignorance, is potential grounds for overturning a contract. So, if she asked you for pay stubs, and you provided doctored or false ones, then it is fraud and she has grounds to overturn.

If you put a gun to her head and forced her to sign, then it is duress and she can get it overturned. Likewise, if she lacked the mental capacity through insanity to understand what she was signing and was therefore ignorant, then it really isn’t a viable contract. Inability to perform I covered in my previous post.

Mistakes in reported amounts of money like “oh, I didn’t remember about that bank account that my mother set up for me when I was 12 with $20 that has now grown to $500,” aren’t really grounds to overturn. It has to be a deliberate attempt to deceive, as in hiding of assets and lying about hiding them.


#6

Got it! Thanks for the comprehensive reply. There was no deception/fraud/duress here. In fact we filed taxes jointly the entire time we were married, so she has no basis to say she didn’t know how much I made or any of the other things you mentioned.

phew Relieved!