Setting aside separation agreement


#1

Hi. I signed a separation agreement under what was more or less duress. I’d like it set aside. While we might be able to resolve the situation amicably, what are my options if we cannot? Thanks


#2

It is very difficult to have a SA overturned. You may attempt to file a motion for relief from judgment, but it is very difficult to prove one was under duress at the time a consent order was signed. You must have been under an imminent threat of physical harm, literally like a gun being held to your head when you signed the order.


#3

Thanks Crystal. My main concern is primary custody. 1. Is it necessary to assign primary custody in a separation agreement?; 2. How does that influence custody decisions made when and if a divorce is finalized?


#4

Does financial extortion count as “under duress”…as in does a threat of lawsuit if a certain monetary compensation isn’t obtained by the other party count as being under duress if the party so extorted had not the means to fight a lawsuit?


#5

Chalmers: No, you do not have to put child custody in a SA. If you do decide to put custody in the agreement, then that will be your custody arrangement moving forward. However, unlike with property and alimony matters, you cannot permanently contract on the issues of custody and child support. So, you can always later file for custody if you choose to do so. If you put it in an a SA, it is not guaranteed that that person will retain custody forever. It can always be challenged, but to successfully file to modify custody, you will need to prove to the court that the circumstances have changed in such a way that affect the children’s best interest.

Athos: It is very difficult to get a judge to overturn a SA based on financial extortion as the basis for duress. The legal definition of duress is much stronger, you must prove that you signed the agreement because you were under an imminent threat of serious physical harm.


#6

OK. Thanks. Odd, but understandable that there’s a physical component.