Dear Cassie: I got divorced a few years ago. My ex-wife and I have a Settlement Agreement that we agreed to. The more I think about it, the more I don’t like its terms. Can I get a Court to give me a better deal?

Dear P.K.:

The short answer to your question is, it would be hard to do.

There is a public policy in New Jersey to favor agreements which are freely and voluntarily entered into by the parties. This is because of the general assessment that the parties themselves are the ones who are best able to determine the most advantageous deal for themselves. For this reason, courts view with circumspection requests by a party to “undo” the terms of a deal that they freely and voluntarily agreed to previously.

Some of the bases for setting aside the terms of an Agreement are the following: a) the terms of the Agreement were entered into as a result of a mistake; b) there is newly discovered evidence which would likely warrant altering the terms of the Agreement; c) there was fraud; or d) the Agreement is “unconscionable.” An unconscionable Agreement is one that is so one-sided as to “shock the conscience” of the Court. Each of the aforementioned bases to set aside an Agreement is a high burden to meet.

The ability to “undo” or set aside the terms of an Agreement is a distinct issue from the ability of a party to seek a modification of parenting time, alimony, or child support after the divorce. Provisions in an Agreement dealing with these issues are always subject to modification based on changed circumstances after the Agreement is entered (unless the terms of the Agreement provide otherwise, as is the case with what is called an “anti-Lepis waiver,” disallowing for a future review of alimony). A modification application is premised on an entirely different argument from a request to set aside an Agreement, which is that facts have changed subsequent to the entry of the Agreement.

What is the takeaway? Settlement Agreements should not be entered into lightly. Diligent attention to all of the issues in your case should be paid before any Agreement is signed. While there is no requirement that you have an attorney represent you in your divorce, having such an attorney is advisable, to ensure that you enter into your Agreement knowingly and with a full understanding of all the facts and law controlling the issues in your case.

If you are dealing with a divorce or seeking to challenge the terms of a Settlement Agreement, you should seek the advice of matrimonial counsel.

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Cassie Murphy is a divorce and family law Partner with the Law Offices of Paone, Zaleski & Murphy, with offices in Red Bank and Woodbridge.