Maryland Divorce Lawyers know that getting the divorcing parties to sign a Separation Agreement can be the key to an amicable divorce. This was the subject of a recent posting on this site. However there are exceptions to every rule.

There are circumstances in which a party to a Separation Agreement argues that it should not be enforced. Under what circumstances can a Separation Agreement be set aside? This posting will be limited to situations in which a final judgment of divorce has not yet been entered.

“ Fraud, such as concealment of assets, income or negligent misrepresentation can be a basis for setting aside an agreement.

The first indicia of a Separation Agreement that is a candidate to be set aside is the existence of terms that are unjust, oppressive or shocking to the conscience. This is a factor that is often concurrent with duress, undue influence, fraud or negligent misrepresentation.

A court may set aside a Separation Agreement upon a finding of duress or undue influence. Duress occurs when there has been the use of coercion that results in the victim’s loss of the ability to utilize his or her free will resulting in the entry of the victim in the agreement. If this sounds like a subjective standard, it is. However, it is a very difficult hurdle to overcome. Material fraud such as concealment of assets or income or negligent misrepresentation of such information can also be a basis for setting aside an agreement. A mutual misunderstanding of a material fact may also lead to overturning an agreement.

Ineffective assistance of counsel and unilateral mistake are not grounds for setting aside a Separation Agreement. Fortunately situations in which Separation Agreements are contested are rare. It should be understood that judges generally begin with a presumption that an agreement should be enforced. The party seeking to attack the agreement will have the burden of proof.