Parties who enter into separation agreements presume they are valid. However, there are a number of specific ways to challenge a separation agreement.
A party that enters into a separation agreement is supposed to disclose all of their assets and income. If it can be shown one of the parties had hidden their assets or income or presented false information about their assets or income, a court may not enforce the terms of the separation agreement.
It is considered a conflict of interest for an attorney to represent both spouses in the negotiation and execution of separation agreements. Each party to a separation agreement should have their own attorney to provide them with reasonable, unbiased. legal representation. In situations where both parties are represented by the same attorney, upon entering into a separation agreement, that can be a basis for a court not to enforce the terms of the separation agreement.
If either party to a separation agreement entered into the agreement not under free will, but subject to duress or coercion, this can be a ground for a court not enforcing the separation agreement or one of the parties having the separation agreement set aside.
Separation agreements must be fair. If one spouse is affluent and the other spouse is poor, and the poor person ends up with very little or nothing at all, a court can set aside the separation agreement as being unconscionable (unfair).
Elliot S. Schlissel is an attorney practicing marital and family law for more than 45 years. He can be reached at elliot@sdnylaw.com and 516-561-6645.
