Full question:
I have a situation where I am being asked to close on a property that was jointly owned by myself and ex-spouse. Some time ago the realtors asked if they could drop the price of the condo since we had received no offers since August 2008. I agreed, but the ex-spouse refused. The divorce decree stated the property (an ocean front condo) was to be sold, with full cooperation by both sellers. We received an offer from a buyer around the middle of January 2009 and my ex-spouse refused to take the offer unless I payed her more than the half that the divorce decree states is the way the profits were to be divided. Once again, the decree also states that there was to be full cooperation in the selling of the unit. Since, as we all know, the market is in the dire straits that it is and we had received no other offers in the prior 5 months, I and the two real estate agents involved thought the offer was fair, and that we should accept the offer. My ex-spouse and the agents then cooked up the idea that I should pay her,(the ex-spouse) an additional $10,000 to get her to sign. The agents presented this to me and pressured me to accept this. I refused to this obvious contradiction to the original divorce decree. The agents then told me that I had 24 hours to decide or the buyer would walk. It was a cash deal with no contingencies. I reluctantly under, what I feel, is duress agreed to sign a form stating that I would pay ex-spouse $10,000 if she would sign the sales agreement. She and the agents forced me to sign this document before the ex-spouse would sign any documents. The closing is today. I would like the title company that is doing the closing to hold the total amount in trust, since I feel that my ex-spouse is in violation of the divorce decree, so that I can take it to arbitration, which the original decree states is how all disputes are to be handled. What are my options?
- Category: Contracts
- Subcategory: Recission
- Date:
- State: Florida
Answer:
Whether you will be able to later void the agreement based on duress or be held to have voluntarily waived the provisions of the divorce decree is a matter of subjective determination for the court, based on all the facts and circumstances involved. Duress is defined as the constraint of another’s will so that he is forced to give consent when he is not in reality willing to do so. Duress must destroy the free will of a party and cause him to do an act or form a contract not of his own volition. The alleged coercive event must be of such severity, either threatened, impending, or actually afflicted, so as to overcome the mind and will of a person of ordinary firmness. Duress is viewed with a subjective test, looking at the individual characteristics of the person allegedly influenced, and duress does not occur if the person has a reasonable alternative to succumbing and fails to avail themselves of the alternative.
“Duress of goods” refers to unlawfully seizing or withholding property, or threatening to do so, until some demand is met. The more modern concept is called "economic duress." The elements of economic duress include the following:
-Wrongful or improper threat: The precise definition what is wrongful or improper is judged by the facts in each case. Examples include: morally wrong, criminal, or tortuous conduct; a threat to breach a contract "in bad faith" or threaten to withhold an admitted debt "in bad faith".
-Lack of reasonable alternative. If there is an available legal remedy, an available market substitute (in the form of funds, goods, or services), or any other source of funds, this element is not met.
-The threat is the actual cause of entering into the contract. This is a subjective standard, and takes into account the victim's age, their background (ex. business sophistication, education), relationship of the parties, and the ability to obtain advice.
-The other party caused the financial distress. The majority opinion is that the other party must have caused the distress, while the minority opinion allows them to merely take advantage of the distress.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
