Daily Archives: January 20, 2012

Buyer’s remorse over separation agreements in divorce

We can all relate to the following scenario: after many long and grueling hours on the phone and in meetings, you and your client have settled his divorce outside of the courtroom.  Everyone is relieved that they only need to go to court once, and that is to have their separation agreement approved by a judge.  But let’s face it — every divorce lawyer has, had or will have a client who experiences “buyer’s remorse” after reaching an agreement with their spouse.  Your client has “buyer’s remorse” because s/he is afraid s/he made a wrong choice; believes that their spouse took advantage and/or tricked them during the negotiation or your client feels guilty for “giving away the whole farm.”  Whatever the reason may be for their “buyer’s remorse” your client regrets the deal s/he made with their spouse and now wants to change the terms of the divorce agreement.  So, what do you do now?

There may be an opportunity to modify and revise the separation agreement but it depends on your client’s circumstances.  The provisions of the statute are very specific to the filing of a Joint Petition for Divorce.  As we all know, according to G.L.C. 208, § 1A, after the parties’ separation agreement has been presented to the court, the court shall make a finding within thirty days as to whether or not an irretrievable breakdown of the marriage exists and whether or not the agreement has made proper provisions for custody, support and maintenance, for alimony and/or for the division of marital property.  If the court finds that an irretrievable breakdown of the marriage exists and the separation agreement does make proper provisions for custody, support, alimony and/or disposition of marital property, the separation agreement shall be approved by the court and a judgment of divorce nisi is entered thirty (30) days later.  If the court finds that the separation agreement does not make proper provisions for custody, support and maintenance, for alimony and for the division of marital property, the separation agreement shall be null and void and have no further affect on the parties.

The statute further provides that if after the separation agreement has been approved but before a judgment of divorce nisi has been entered (90 days from date of the judgment of divorce nisi), the separation agreement can be modified by agreement of the parties and the court’s approval.  The separation agreement can also be modified upon petition to the court by one of the parties “after a showing of a substantial change of circumstances” and that the parties’ modified agreement shall continue as a court order.  Another possibility (but one that I have yet to experience) is where the Joint Petition for Divorce is withdrawn by mutual agreement of the parties.

In the circumstance where the scheduled 1A hearing has not yet occurred but a party has a change of heart regarding the agreement, the party may file a motion to strike the separation agreement for the judge’s consideration.  In ruling on the motion the judge must decide whether or not the separation agreement made proper provisions for custody, support and maintenance, for alimony and/or for the division of marital property as well as whether the agreement was fair and reasonable and free of fraud under the standard set in Dominick v. Dominick, 18 Mass.App.Ct. 85 (1984).

Regardless of whether you filed a Joint Petition for Divorce under M.G.L.A. c. 208, § 1A of a Complaint for Divorce under M.G.L.A. c. 208, § 1B — What happens when the judgment for divorce nisi has been entered but the 90 days has not yet passed for the judgment to become absolute?  Per M.G.L.A. c. 208, § 21, the judgment of divorce shall become absolute unless a court orders otherwise for sufficient cause.  A party must make an application to the court to prevent the judgment of divorce from becoming absolute.

The spouse who has “buyer’s remorse” for whatever the reason may file a statement of objections with the court to prevent their judgment of divorce nisi from becoming absolute.  M.G.L.A. c. 208, § 21; Mass.R.Dom.Rel.P.R. 58(c).  The statement of objections must be fact-specific and must be accompanied with an affidavit.  Of course, notice of the objections must be given to the other party no later than the day of filing.  The portion of the judgment that is objected to, and only that portion, will not become absolute until the objections have been disposed of by the court.  If the objections are dismissed by the court, the judgment becomes absolute as of 90 days from the initial judgment of divorce nisi.

It is important to mention that the death of a spouse during the 90 day nisi period prevents the judgment of divorce nisi from becoming absolute.  The death of the spouse dissolves the marriage and not the divorce absolute because it has not occurred yet.  As a practice tip, you may include language in the separation agreement that the separation agreement takes effect as of the date of the court hearing under M.G.L.A.  c. 208, § 1A, and absent any countervailing equities, said provision may be enforceable if a spouse dies before the judgment of divorce nisi is entered or becomes absolute.

In summary, most of the divorces we settle are left alone by our clients and their spouses.  However, there are occasions where we will need to vacate a judgment of divorce nisi and address our client’s “buyer’s remorse”.

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