Legal Question in Family Law in Massachusetts
Fact pattern: in a Massachusetts divorce settlement wife retains family dwelling and court-orders wife to pay husband $20,000 within 5 years or upon sale of the family dwelling as the adjudged portion of the husband's stock in the home. A $20,000 lien is placed on the house for the husband. 6 months later wife hooks up with ex-husband and engages in a one-time affair. Immediately subsequent to the affair the wife asks her former husband if he will accept a $5,000 one time payment now, and absolve her of the court ordered debt of $20,000. Husband agrees and signs a piece of paper prepared by the wife reflecting said agreement. Wife then goes to family court, produces cancelled check for 5K and the agreement signed by the husband and requests that the court order the husband to release the lien on the home. Subsequent agreement between wife and ex-husband is not witnessed or notarized, and the court is not involved in any way. Is the agreement sufficient to discharge the full debt/order?
1 Answer from Attorneys
Unfortunately, I think the parties have created a situation where an attorney could argue successfully on either side.
Does the settlement agreement or judgment of divorce indicate how the agreement is to be modified. Usually it calls for the consent and signatures of both parties and notarization. If it has been more than 5 years and ex-wife had still not paid, then ex-husband may consider filing a complaint for contempt before she can take any further action. Given the circumstances, the ex-wife would likely not be in contempt, but it could force a hearing on the issue.
I think more information will be needed about the circumstances of the agreement that was signed, i.e. was it signed on a napkin after 4 glasses of wine and a romantic dinner, or was it prepared and considered and signed with the intent to be fully bound? While ex-wife will have to overcome procedural hurdles, ex-husband will have to overcome the fact that adults are free to contract and agree as they wish.
You should retain counsel and I welcome you to contact our office at 617-357-4898.
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