Full question:
My husband of 43 years divorced me to be with another woman. There were no minor children involved and we have an agreement that our house will go up for sale in June 2011. I am making plans to buy his half out but when I made that agreement I was in extreme distress because of the situation. Is there any recourse I can take now either on him or HER to use as leverage to get him to agree on my house settlement amount?
- Category: Divorce
- Subcategory: Property Settlements
- Date:
- State: California
Answer:
The property agreement in the divorce decree should have described the amount of your buyout for the house. When a court order isn't followed, a petition for contempt may be filed in the court that issued the order. A request may also be made to have the court to order the noncomplying party to pay for the losses caused by the failure to comply. The court retains continuing jurisdiction to enforce its orders by holding the noncomplying party in contempt of court.
If the former spouse fails to maked required payments, it is possible you may file a motion for contempt, and then it will be a matter of subjective determination for the court, based on all the facts and documents involved. A party may also file a Judgment on Rule for Contempt, which is a prepared judgment ready for the judge to sign, to further the court's ease in making a determination. A certificate of service is filed along with the petition to prove that the petition was served on the opposing party.
If this was a private agreement you made after the divorce, it will be a matter of private negotiation. A motion may be made to have the court rescind the agreement. Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds. An agreement made under duress may be set aside if the duress took the free will away of the person seeking to avoid the contract. In a duress situation, a party enters a contract to avoid a threatened danger. This threat may be a threat of physical harm to person or to the property of someone (physical duress) or it may be a threat of financial loss (economic duress).
It is possible to rescind a contract based on mistake. Mistake covers a broad set of situations, and courts often distinguish between unilateral mistake and mutual mistake. A unilateral mistake is an incorrect belief of one party that is not shared by the other party. A mutual mistake is an incorrect belief shared by both parties. Courts have traditionally held that mutual mistakes are more likely than unilateral mistakes to make a contract voidable.
Where only one of the parties is mistaken about facts relating to the contract, the mistake will not prevent formation of a contract unless the nonmistaken party is or should have been aware of the mistake made by the other party.
A person makes a contract under duress when there is violence or the threat of violence to the extent that the person is deprived of his free will and makes the contract to avoid harm. The threatened harm may be directed at a relative of the contracting party as well as against the contracting party. If a contract is made under duress, the agreement may be rescinded or declared null and void.
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.
