You successfully settled your divorce case when you wake up the next morning with regret, buyer’s remorse, or simply that sinking feeling experienced about what you just did. Can you change your mind after settlement?
The first step in the analysis is determining if your settlement is in fact a contract. Was there an offer that was accepted? In the context of Michigan family law, settlements typically arise in different ways, such as a settlement placed on the record in court, mediation or a signed writing.
When a settlement is placed on the record the parties are placed under oath and a record is made of the contract. Under Michigan Law, courts are bound by settlement agreements. However, there are circumstances when you can change your mind after settlement. Specifically in circumstances of fraud, misrepresentation, duress, mutual mistake or certain instances of severe stress.
In the 2018 case of Rettig v. Rettig, the parties entered into a memorandum of settlement. The memo signed by the parties following a mediation meeting resolved all of the disputes for the divorce and was adopted by the trial court, including custody, parenting time, property division and child support. Ms. Rettig changed her mind after settlement about custody and parenting time and asked the trial court to set it aside. Mr. Rettig asked the trial court to enter a Judgment of Divorce consistent with the memorandum and the trial court did just that relying on the signed memorandum. On appeal, Ms. Retting argued that the trial court had an affirmative obligation to make certain that the custody and parenting time agreement was in the best interest of the child. The Court of appeals relied on the Michigan Supreme Court case of Harvey vs. Harvey in deciding that there is no requirement when the “parties have agreed to a custody arrangement, to require the court to conduct a hearing or otherwise engage in intensive fact-finding.”
In the 1985 case of Calo v. Calo, a stipulated settlement agreement was placed on the record. The wife expressed buyer’s remorse about the property settlement and changed her mind about the settlement. In support of her position, the she argued that her ex-husband committed fraud and misrepresentation by not disclosing his employment plans. The Court of Appeals set aside the Judgment of Divorce and asked the trial court to consider the allegations of fraud and misrepresentation. However, the Court of Appeals also noted that: “It is well settled that courts are bound to uphold property settlements reached through negotiations and agreement by the parties in a divorce action absent fraud, duress, or mutual mistake” which are three basis for setting aside a deal if you change your mind after settlement.
In the 1984 case of Howard v. Howard, A judgment of divorce was entered following a settlement agreement placed on the record in open court. Prior to the entry of the judgment of divorce, the client fired her attorney, hiring new counsel who objected to entry of the judgment of divorce as his client changed her mind after settlement. The Court of Appeals once again noted that Courts will uphold the validity of property settlements reached through negotiation and agreement by the parties in a divorce action in the absence of fraud, duress or mutual mistake. This rule applies whether the settlement is in writing and signed by the parties or their representatives, or is orally placed on the record and consented to by the parties.
In the 1990 case of Keyser v. Keyser, the wife informed her husband she was having an affair and wanted a divorce. The wife told her husband that she only wanted the pickup truck and personal belongings. She wrote an agreement and her husband signed it. Neither party had a lawyer. The Court of Appeals upheld the agreement determining that the parties freely, voluntarily and understandingly entered into and signed the agreement.
In the 2012 case of Vittiglio v. Vittiglio, after the parties reached a settlement agreement after mediation that was memorialized in an audio recording. The wife changed her mind after settlement arguing that the award of property must be in writing to be enforceable. While this notion is true in many circumstances, the Court of Appels determined that the audio recording was an adequate alternative to a signed writing and enforced the settlement.
In the 2006 case of Lentz v. Lentz, the husband and wife worked out the details of a settlement agreement and a lawyer drafted a document to reflect the parties’ wishes. Neither party individually had an attorney review the contract. Wife changed her mind after settlement and sought to set aside the agreement, arguing her husband failed to provide her with correct information regarding the value of his business. On appeal, the Court restated the idea that Court’s: “. . . will not rewrite or abrogate an unambiguous agreement negotiated and signed by consenting adults by imposing a “reasonable” or “equitable” inquiry on the enforceability of such agreements. An application of general contract principles to this agreement mandates only one conclusion: the parties freely entered into an agreement to divide their property as they saw fit, and we will not redraft the agreement or rule in a manner that allows either party to avoid his or her contractual obligations.”
The key learning from the overview of these cases is simple. You should not enter into a settlement if you are uncertain. If you change your mind after settlement, it may not be possible set aside the terms absent fraud, duress or mutual mistake which are often very hard to prove.
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I have been exclusively practicing divorce and family law in Michigan for over two decades. The attorneys at Findling Law all share the core value of practicing law to help people navigate change in their lives, without compromising principles. We are compassionate, creative and always prepared. We specialize in high socio-economic, high-profile and high-conflict cases, while also working with clients of all backgrounds. We recognize that the most important aspect of the practice of law is the application of the law to your specific circumstances.That is why we provide more free information on divorce and family law than any other Michigan law firm. We want to help you manage your situation. Allow our exceptional legal team to help you navigate the change in your life, without compromising principles.
By: Daniel Findling