Wife wants to set aside separation agreement


#1

My wife left me in early Feburary. Before her leaving, I drafted our separation agreement after reviewing NC guidelines, understanding what is required, and filed examples from NC court, etc. I researched it a great deal. We both agreed that we didn’t need representation. We only had house, cars, furnishing, savings/checking, retirement accounts and a child. We didn’t have a business or any other real estate to consider. We agreed to not touch either of our retirement accounts and to leave them as is so we did state that in our separation agreement. We also stated that we were not dependent on each other and were waiving any spousal support. She was privileged to all of our bank accounts and knew what was there. We calculated what her half would be minus any current and future known debts that I would pay. I kept the house so I gave her half of the equity. She conveyed all property in the house to me because she wasn’t interested in it. I was absolutely fair about everything.

It’s been 4 months and now she has an attorney saying they may make an effort to set aside the separation agreement to seek alimony and retirement account distribution. We both signed and notarized our agreement several days after we both agreed it was complete and prior to her leaving the residence. She nor I was under any duress, both of sound mind and professional individuals and she had and took plenty of time to read it. She didn’t make any further comments about seeking an attorney nor did I. Again we both agreed to this to save us the money. Will the courts allow this? Can our agreement be set aside? We have a clear agreement, signed properly with everything stated in it that pertains to us. If the courts allowed this then how do separation agreements have any validity?


#2

It is very difficult to set aside a separation agreement, based on the facts you list, I do not see that she has a viable claim to do so.


#3

Thanks Erin!
One question though. We knew what was in the bank accounts but neither of us asked to see the retirement accounts. We thought each of our retirement would be comparable to the other at time of separation but didn’t know for sure. We both agreed that we didn’t want to decrement the retirement of the other and deal with possible affects of touching retirement accounts thinking that there might be negative affects to retirement in doing so. I can’t see either retirement account being significantly larger than the other … but what would the value disparity need to be to have any influence in setting aside a separation agreement? If a separation agreement is set aside, will it only be for anything that has a valid claim to change? So could retirement be an issue but alimony excluded because spousal support is something that was stated very clearly as well that we were waiving claim with the other.


#4

So long as you included a disclosure paragraph the no part of the SA should be set aside. Otherwise, that should be the only issue revisited, if at all.


#5

the SA stated in a paragraph by itself that we have divided to our mutual satisfaction all intangible personal property including but not limited to checking and savings, pension, profit sharing and retirement plans and other things we listed that would have monetary value … and that hereafter, neither of us shall make any claim against the other for such property in possession or control of the other. I’m assuming this is the disclosure you speak of? If so then yes, this is stated in the SA and was the intent of said paragraph. I just think it’s now a situation wife wants to re do it after further consideration. But that is what the SA is for … we sign it to our satisfaction and agree with the terms set within as long as we didn’t fraud or coerce the other.

Technically she will breach contract by filing a motion to set aside the SA which isn’t good for her, right?

Thanks again for your expertise, Erin! It is most appreciated.


#6

That paragraph may suffice, but I was referring to a paragraph that specifically stated each of you was satisfied with the disclosures given by the other.

Filing a motion to set aside the agreement is not a breach.