Q&A: Can I Change My Mind and Back Out of My Settlement Agreement?

Can you unilaterally change your mind about a settlement agreement in a divorce action?

I think the short answer to that is no. A settlement agreement is a contract essentially. Normally, you can’t just back out of a contract because you suddenly decide you don’t like one of the terms. If you did that, then you would be in breach of contract and there are plenty of legal consequences for breach of contract that you are not going to be thrilled about. A contract can be voided and you can be excused from performance of the contract under certain circumstances. But absent compelling circumstances I don’t think you can just back out of a settlement agreement without repercussions.

Think of it this way: you and your spouse negotiated for months or even years and had a “meeting of the minds” and agreed to a certain basket of rights and privileges and assets and transfers. All of these were negotiated in good faith by you, your spouse and all the attorneys. Sometimes the judge even put in his or her two cents worth.

Can you just casually decide to back out? In my view, not absent some kind of fraud or newly discovered information that could not have been discovered under normal channels before you agreed to the agreement. Other than fraud, you would have to demonstrate one or more of the following, I would think: mistake, coercion or undue influence, or some form of illegality that taints the agreement.

The fact that the agreement may not have been signed yet could be something to give you some wiggle room but don’t count on that because under certain circumstances it could be viewed as an oral contract and those can be enforceable. Not always. But quite often.

Additionally, the fact that the settlement agreement may have been signed but has not yet been entered into the final judgment of divorce could also give you some wiggle room to change your mind. You or your lawyer would have to do an order to show cause or some type of motion to ask to judge to disregard the settlement and rescind the agreement.

Even if the agreement has been signed and entered into the judgement, if it is merely incorporated in the judgement but not merged with the judgement it might be easier to cut it from the decree and start over (assuming you can show a good reason for this that includes, for example, fraud or mutual mistake) than if it is merged into the decree.

Of course, if both spouses agree to a whole new settlement agreement, it would be a lot easier for both sides to convince the court to tear up the original divorce decree and enter a new one with a new settlement agreement.

Normally though, it is not so easy to just change your mind and un-agree to a divorce settlement. Judges are not too particularly thrilled about that, I have found.
Read this post from a few years ago on the same question: Once I sign a settlement agreement can I change my mind? http://www.divorcesaloon.com/2006/10/30/once-i-sign-the-stipulation-of-settlement-in-my-divorce-can-i-change-my-mind/