Can a Mediation Agreement be Set Aside?
Are you contemplating divorce? Perhaps you are already in the process of divorcing. In Tennessee a couple seeking a divorce is typically required to attend mediation. In order to attempt to resolve the issues in controversy outside of court. In fact, the courts are requiring mediation in almost all divorce cases. But, will the mediation agreement be enforced by the Court?
Have Your Divorce Lawyer Present During Mediation
The best and first defense to an unfair or improper mediation agreement is to be sure that your divorce attorney is present with you in mediation. Be sure your lawyer reviews any proposed settlement agreement before you sign it. A divorce lawyer is trained in the law and in negotiations. Even though it is the parties negotiating in mediation, the attorney will give advice and direction. This helps you obtain the best results possible. Legal and bargaining strategy requires skill and expertise. Especially in developing a mediation agreement for Divorce.
Is a mediation agreement enforceable, or can a person change his or her mind?
This is one of those questions that depends upon the actual facts of the situation. It needs to be reviewed with a domestic relations attorney. Generally speaking a mediation agreement, when reduced to writing and signed by both parties is enforceable as is any other written contract. In fact, the Tennessee Supreme Court and Court of Appeals have repeatedly upheld the enforcement of mediated post nuptial agreements, which are sometimes titled “Memorandum of Understanding” or “Mediation Agreement”. Often times such agreements are ultimately incorporated into a Marital Dissolution Agreement which is presented to the divorce court for approval. In divorce cases involving children a Permanent Parenting Plan is also developed from the mediation agreement.
Can a Mediation Agreement Be Set Aside by the Court?
But, what happens if one party decides that the mediation agreement ought to be set aside – rescinded? This depends on the situation that led to the agreement and the written agreement itself. Absent fraud, duress, or mutual mistake of fact, which are the most common contract defenses, a mediation agreement is most likely to be considered an enforceable contract by the divorce court, and will ultimately be adopted in a Final Decree of Divorce.
There are Limited Defenses to a Mediated Post Nuptial Agreement
The Tennessee Court of Appeals in the 2004 case of Bratton V.S. Bratton held that “Because of the confidential relationship which exists between husband and wife, postnuptial agreements are . . . subjected to close scrutiny by the courts to ensure that they are fair and equitable.”
The Court also held that “Generally, postnuptial agreements will be treated in the same manner as antenuptial and reconciliation agreements. That is to say, they should be interpreted and enforced as any other contract. All contracts must be supported by adequate consideration, and agreements between spouses or potential spouses are no exception.”
So another potential contract defense in a contract between divorcing spouses is the lack of proper consideration. In other words the provisions in a mediated agreement should provide consideration for each benefit. For instance, if one spouse is to receive a certain marital asset (house, car, retirements accounts, etc) there should be a benefit flowing from that spouse to the other spouse. A good example of consideration would be that the wife receives all of the equity in the marital home, and the husband keeps 100% of his 401k account. This is a benefit for a benefit. Another example of consideration is a promise for a promise. Neither party shall receive alimony- each promises not to pursue alimony benefits. If the mediation agreement lacks proper consideration. And does not equitably divide the property. It may be subject to attack in the divorce court.
However, most of the time a mediation agreement in divorce is enforced by the courts. Speak to a skilled divorce lawyer about mediation and any mediation agreement.