Legal Question in Family Law in New Mexico

Re: Settlement agreement

A settlement agreement , once adopted by the court, is a judgment, and it can overturned under Rule 60 for several reasons including fraud - which includes misrepresentation or other misconduct. You could file a motion with the court to overturn the settlement agreement based on fraud.

That said, a settlement agreement is also a contract - and the courts generally require everything in the contract to be written - which you say your verbal agreement was not. So you have a little problem there, but a Family Court Judge may be willing to buy your argument because such misrepresentations are generally hidden by not being written. But it's your word against his that the bargain was made, unless you have a witness, so if he's not willing to 'fess up or you have a witness the judge may not be able to decide in your favor. I'd try it anyway.

There's another issue you face: the parenting plan is based by law on the best interests of the child. So even if you had an agreement with your ex the court will not allow either of you to bargain away the best interests of the child in exchange for property in the settlement agreement. To illustrate what I'm talking about here, let's suppose, for example, that you and your ex agree to limit the child's visits with your ex to, say, once a year, rather than usual once or twice a week or 30 - 50% of the time, in exchange for you allowing your ex to take all the cars, the house, and the bank accounts. The court may consider more visits with your ex to be in the best interests of the child. So the court would look at that as your ex agreeing to trade something the child has a right to (time with his father), in exchange for property, and your ex may not do that: only the court can make that decision on behalf of the child.

Now to return to the settlement agreement, a bargain that includes trading something you may not by law trade (the child's interest as illustrated above), is generally void.

Bottom lines are two: (1) you may be able to get the settlement agreement overturned either on fraud based on his misrepresentation or because it was void because not allowed by law; (2) The court will consider the parenting plan without regard to the property settlement agreement.