Mary Tran: If You Agreed to Bad Terms in Your Divorce Settlement, You Will Get Screwed

So you don’t like the terms of your divorce settlement and you want to modify those terms. I’ve heard this many times because I’m a divorce lawyer. Hopefully you met with an attorney before you signed the divorce papers.

I hope that when you signed that settlement agreement you didn’t agree to getting hosed and then think you can complain about being hosed and have the court bail you out.

With rare exception, by agreeing to the hosing that means you’re stuck with getting hosed. If you pulled the equivalent of a “Yes, Dear” when you settled your divorce case out of court, and now you want to “modify” your divorce settlement, you likely have a serious problem.

We know what you probably did: you got tired, depressed, scared, your ran out of money, and so you agreed to what you knew to be a lousy settlement out of frustration and/or fear and thought “any settlement is better than continuing to litigate.”

You may have also settled thinking that you’d broach the subject again down the road, when your ex had calmed down. We get it. We see this all the time. But the “I’ll just agree to getting hosed now and seek a change later, after the dust settles” mentality doesn’t fly. Agreeing to the hosing means you’re stuck with what you agreed to. You asked for it.

Coming back to your ex or to your judge a few months or even a few years later proposing some changes won’t work unless you can convince your ex to change or unless you can show the court that the law warrants a change. That’s not easy.

You can’t just request a change because you feel a change is appropriate. People who try to get their decrees of divorce modified on this basis are in for disappointment. Deep down, they know why: the one who got the better end of the lop-sided deal you made rarely grows a conscience (no matter how long you let them “cool down”), nor will they magically concede you are being taken advantage of. Your ex will respond with, “You agreed to these terms. You told me they were fair and acceptable to you then. Well, they’re fair and acceptable now too, and I am not willing to change them.” And that’s not your only problem.

The court follows the same reasoning in saying “I approved your agreement, and I won’t reconsider it after the fact.” Now don’t confuse a bad deal you made voluntarily with a fraudulent deal you made innocently. If you agreed to a settlement based upon your ex making false and misleading representations to you, AND if you can prove that to the court AND you file a motion or new law suit within the VERY short time periods the court rules permit, you can get a fraudulent settlement overturned.

And don’t confuse a bad deal you made voluntarily with a material and substantial change in circumstances. If you agreed to pay alimony based upon an income of $75,000, and then you lost your job because of a medical condition that leaves you unable to work that job or any other job that comes close to paying $75,000, that’s known as a material and substantial change in circumstances that arose through no fault of your own. If material and substantial circumstances arise, you can ask your ex to modify, and if your ex won’t agree, you can go to the court asking the judge to modify the decree to fit the change in circumstances. Just remember: to modify a divorce decree based upon a material and substantial change in circumstances means generally that it has to be a big, serious change, a change you didn’t cause, and a change that wasn’t foreseeable.

OK, now back to settlements made out of desperation and fear, etc. If you choose to make a bad deal—whether with the used car dealer or after you order Miracle Blade knives off the TV or in a divorce—you’re stuck with the outcome. Even if you get a good attorney to try and get a change your decree down the road, it won’t work (so save your money on that attorney). Courts honor and enforce agreements between divorcing spouses. So, no matter how ugly your divorce might be, no matter how long it drags on, if you think a quick settlement now, followed by a second bite at the apple later is a smart “strategy,” think again.

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