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When choosing to proceed with a divorce without legal representation, it's crucial to assess your tolerance for potential risks involved. In a way, the central issue which you’re trying to deal with when you hire an attorney is risk minimization. Of course, there are other issues involved, but minimizing risk – and by extension, the various penalties and repercussions which follow risk – is certainly among the most important. When you proceed without adequate counsel, you are undoubtedly adding considerable risk to your situation. When you review a contract, for instance, such as a marital settlement agreement, and you don’t have a capable attorney, you run the risk of agreeing to terms which are not maximally beneficial to you.
The case of Elyassi v. Sutton (2018) shows us in very clear ways the risks which come with proceeding without an attorney. In that case, the ex-wife signed a post-judgment agreement which was quite deleterious to her situation. Let’s examine that case in detail.
Outline of the Case
The spouses in this case were both dissatisfied with the terms of the divorce judgment in their case. In response, the husband decided to draw up a post-judgment agreement –specifically, a “Consent Amendment” – which would modify the judgment. The husband approached the wife and made a specific request that she review the terms of the consent amendment, and also sign it, without the assistance of her counsel. One of the terms of the agreement held that the agreement itself would be unappealable following signing by both parties. The wife signed the agreement.
The husband quickly moved the court to declare that the consent amendment was an enforceable agreement. The wife, realizing after the signing that she should’ve obtained counsel, attempted to block enforcement of the agreement. She consulted with her legal team, and ultimately she tried to argue that the agreement was unenforceable, although she didn’t have a solid foundation for her argument. Normally, to render a mutually signed agreement unenforceable, there needs to be evidence of either fraud, duress, coercion, or unconscionability. The matter went before a trial court judge and the judge determined that the agreement was enforceable. Even though the agreement contained a “no appeal” clause, the wife still brought the matter before the appellate court.
Ruling & Discussion
The appellate division ruled in favor of the husband and the consent amendment stood as an enforceable agreement. This is a crystal clear case of how a skilled attorney would’ve been immensely beneficial to the wife. She signed the agreement without any counsel– and then, what’s worse, she agreed to a no appeal clause. If she had been represented by capable counsel, she almost certainly would’ve avoided the terms of the agreement which were unfavorable to her. Ultimately, the appellate court was basically compelled to enforce the agreement unless evidence of fraud, duress, coercion or unconscionability was found. In this case, no evidence of those sorts was present, and so the agreement had to stand.
Some readers may find this outcome seemingly unfair, but there is only so much a court can do when it comes to considering the unfortunate decisions of litigants. In this situation, the wife had ample opportunity to obtain assistance from counsel prior to the signing, and she failed to do so. Given that she had ample opportunity, the court would be doing too much to render the agreement unenforceable merely because the wife later realized she would suffer from unfavorable terms.
Contact the Murphy Law Firm for More Resources
If you want more resources, such as additional information on the pitfalls of proceeding without counsel, or a particular family law topic, reach out to one of the family law attorneys at the Murphy Law Firm today by calling 240-219-5243.
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