Fraud, duress, accident, or mistake can undo a Georgia divorce settlement, but how you raise it depends on whether the judge has already adopted the agreement.
Before the Judge Adopts It
Until incorporated into a decree, a settlement agreement is a contract, and the ordinary defenses apply. Under OCGA 13-5-5, “[f]raud renders contracts voidable at the election of the injured party.” OCGA 13-5-6 says the same of duress, and under OCGA 13-5-4 a contract based on “a mutual mistake of fact or of law” cannot be enforced.
In Jones v. Jones, 280 Ga. 712 (2006), the Georgia Supreme Court upheld a settlement where there was “no evidence of fraud, mutual mistake, overbearing or any other legal defense to that contract.” Grief is not on that list: in Underwood v. Underwood, 282 Ga. 643 (2007), a husband who had acknowledged the settlement under oath could not escape it because of his brother’s recent death.
After It Becomes a Judgment
Once incorporated, the agreement is the judgment, and the attack must be on the judgment. OCGA 9-11-60(d)(2) allows a motion to set aside a judgment for “[f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant,” and OCGA 9-11-60(f) requires that motion “within three years from entry of the judgment.”
In White v. White, 274 Ga. 884 (2002), a husband hid assets during the divorce, and the decree’s alimony and property provisions were set aside for fraud. By contrast, in Mehdikarimi v. Emaddazfuli, 268 Ga. 428 (1997), a wife who claimed duress eight years later was too late; voiding the agreement alone “could have no effect on the validity of the final divorce decree itself.”
Duress after judgment is harder. Under Frost v. Frost, 235 Ga. 672 (1975), “it must appear that the complainant had a good defense which she was prevented from asserting at the original hearing or trial.”
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!