Maryland Divorce Lawyer Blog
Failing to obtain experienced legal counsel is often a mistake in a divorce case, even if you and your spouse are seeking to resolve the matter by agreement. That’s especially true if your spouse has retained an attorney. Your skilled Maryland divorce lawyer can help you assess whether or not the agreement proposed to you is genuinely fair to you, and whether or not a judge might award you significantly more if you litigated the matter. Your attorney can also help you identify harmful provisions in the agreement that might be unenforceable under either Maryland family law or Maryland contract law.
Proceeding on your own, especially if your spouse has legal representation, can expose you to serious risks. Take, as an example, the divorce case of C.G. and K.G., a Maryland couple with no children who decided to end their decade-long marriage in 2018.
By early 2019, the couple had mutually worked out a marital settlement that divided their property.
In many cases, this is a good thing. Couples who resolve their divorces by mutual agreement as opposed to litigation often succeed in avoiding much of the bitterness, hostility, and expense that can go with a litigated divorce. That can be particularly beneficial if you and your ex-spouse are planning to co-parent children going forward.
For this couple, things seemed on the surface to be going well initially. The husband, who did not have a lawyer, had agreed to add the wife to the marital home’s deed and give her three years to purchase the home outright.
However, because the wife had no income at the time, the mortgage lender refused to allow the change to the deed. The wife, who did have an attorney throughout the process, allegedly proposed a “great idea” to deal with the deed problem. Her proposal involved the husband paying her a sum of alimony (the spouses had each waived alimony in the original agreement) so that the mortgage lender could see that she had income, thereby facilitating approval of her loan application and the deed change.
An addendum to the agreement was created and submitted to the court. This altered the original agreement by making the husband pay the wife’s health and auto insurance premiums for an extra year, giving the wife 100% of the husband’s thrift saving retirement plan account (an increase over the 50% stated in the original agreement), and obligating the husband to pay alimony of $4,200 per month for 30 years.
The husband still did not have an attorney.
The Entry of the Divorce Decree Blocked a ‘Collateral Attack’ on the Settlement Agreement
Several months later, the husband wanted out of the agreement as amended, so he filed an action attacking the modified agreement, arguing that the addendum was void as a violation of contract law.
The husband, however, had a huge procedural problem. The addendum was legally part of the settlement agreement. The settlement agreement was “incorporated but not merged” into the couple’s divorce decree, which mattered a great deal because “where a marital settlement agreement is incorporated but not merged into a divorce decree, the agreement may not be collaterally attacked” in a contract action. Once your divorce becomes final, the validity of the agreement “is conclusively established” by the issuance of the divorce decree.
Was the amended agreement unfair? Possibly. However, the law gives contract parties wide freedom to craft an agreement’s terms as they see fit. Especially in the circumstance of a divorce, there are limited means for getting your settlement agreement tossed unless you have very strong evidence of fraud, coercion, or duress.
In other words, the husband did not obtain an attorney when he should have, and then attacked the addendum in a manner that was not valid under the law. The “takeaway” from all this is the paramount importance of having reliable legal counsel on your side when you are negotiating or re-negotiating your marital settlement agreement in order to protect you properly.
If you are going through the process of divorce, whether you are negotiating a settlement agreement or litigating your issues, count on the experienced Maryland family law attorneys at Anthony A. Fatemi, LLC to be there by your side every step of the way and protect you fully in accordance with the law. To learn more about how we can assist you, contact us at 301-519-2801 or via our online form.