Beware, once a party has entered into a written agreement addressing all marital issues, it is very difficult for either party to be relieved of an obligation required by the agreement especially if the agreement was incorporated into a Final Judgment of Divorce.   It is quite common for litigants to state that they wanted to get the divorce “over with” because the other side made life “unbearable” and as such were “pressured into” signing on the dotted line. However, these types of situations do not necessarily form the basis for a Court to hold written agreements unenforceable. I am writing this Blog because yet another person has asked me why I think it is unwise to purchase a “do-it-yourself-divorce kit”. I am told that these divorce kits contain all the forms necessary to proceed with a divorce. What the kits don’t tell you is that if you proceed with a divorce and you incorporate a written agreement that you and your spouse entered without the benefit of legal advise, if it turns out that the agreement is unfair based upon information that you later find or that you find the agreement unfair only after you effectuate the terms of the agreement, you may find yourself stuck with the agreement. Therefore, to avoid being sorry later on, it is imperative that you do not enter into any written agreement simply for the sake of “getting the divorce done” and without thoroughly reviewing your situation with an attorney. 

It is important to note that New Jersey has a strong policy favoring enforcement of agreements. “Property Settlement Agreements” are used as vehicles to efficiently and expeditiously resolve divorce litigation. The Courts encourage parties to enter into agreements to resolve the personal issues created by divorce including custody, visitation, alimony, child support and equitable distribution. Moreover, marital agreements allow the parties to resolve these personal issues in such a way that best fits each party and the children’s needs. The parties also have the ability to assume certain obligations that they otherwise would not have if the Court were to conduct a trial and render a ruling. In other words, in negotiating agreements, the parties are not bound by what the Court can or can not do if the matter were to go to trial so long as the agreement is entered voluntarily and fairly.Accordingly, Property Settlement Agreements that have been knowingly and voluntarily executed by divorcing spouses are entitled to considerable weight with respect to their validity and enforceability such that a presumption of validity is present. Although such agreements can be avoided on grounds of fraud, duress or unconscionability, the party challenging the agreement bears the burden of demonstrating that the agreement is unfair and inequitable. Furthermore, a Property Settlement Agreement that is incorporated into a final judgment of divorce may be set aside pursuant to New Jersey Court Rule 4:50-1, Grounds of Motion for Relief from Judgment, among other reasons, if there was fraud, misrepresentation, or other misconduct of the adverse party.

“Fraud” occurs when one party misrepresents important facts or information with the intension that the other party rely or act upon such representation to the other person’s detriment. To warrant disturbance of a written agreement, the misrepresentation and the ill-intent must be shown by clear, convincing and satisfactory evidence. Moreover, a party seeking relief from the Agreement must also show that the misrepresentation could not have been discovered prior to entry of the Agreement even if the party made diligent efforts to investigate the veracity of the representation. For example, if you enter into a written agreement with your spouse and then proceed with a divorce kit and you later find out that your spouse misrepresented his income for purposes of calculating support, you may be stuck with the agreement if you could have made diligent inquiry as to his income prior to signing the written agreement.

“Unconscionability” is found if there is a significant bargaining disparity between the parties such as an agreement whose terms are manifestly unfair or oppressive are dictated by the dominant party. Furthermore, agreements will also be found “unconscionable” if the agreement contains such patent unfairness that no reasonable person unless acting under compulsion or out of necessity would accept its terms. While it may seem easy to un-do a written agreement that you later feel is patently unfair, it is important to note that what you may deem “unconscionable” to you personally may not be “unconscionable” to the Court. Again, the divorce kits don’t tell you what a Court may find as fair, equitable or unconscionable– the kits simply tell you to fill-in the blanks.

In short, do not enter into any written agreements resolving all of your marital issues without the advise of an attorney especially if you are intending to incorporate your agreement into a Final Judgment of Divorce that you are obtaining through a do-it-yourself kit. Moreover, if you are one of those people that entered into a written agreement, got a divorce using a kit, and are now sorry you entered into the agreement, by all means, seek the advise of an attorney as soon as possible so that you can discuss your options and possibly succeed in setting aside the terms of the written agreement.