When divorcing parties appear in court to put their final agreement on the record, there’s risk that one party or the other may later try to reopen the case by making claims such as: 1) I was feeling intimidated, depressed or wasn’t thinking clearly that day; 2) I was under the influence of alcohol or drugs, or I didn’t take my medication; 3) I didn’t have time to talk with my attorney or was otherwise rushed; 4) My attorney was incompetent and/or never explained the agreement to me; 5) I didn’t understand the agreement; 6) No one gave me a chance to ask questions; 7) I never had a chance to read the Marital Termination Agreement or proposed Judgment & Decree; 8 ) There were promises made to me not in the agreement; 9) I was threatened and/or coerced into making the agreement.
Most attorneys do not make a good enough record to protect against all or most of the above concerns. An ounce of prevention at this stage will largely guarantee finality (except for cases actually involving fraud, misrepresentation or a deception on the court), saving you and the parties a great deal of time, expense and peace of mind.
The judge can reduce the risk of subsequent challenges to the agreement by asking a few direct questions of the parties. Attorneys too can safeguard the finality of the agreement by anticipating and making a record to protect against post-trial claims.
Hon. Alan Pendleton
10th Judicial District