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FRAUD AND DURESS - RELIEF FROM DIVORCE JUDGMENT
1995 National Legal Research Group, Inc.

When the dust settles after a property settlement and dissolution, economically dependent spouses may begin to question whether they actually got a good deal. In some cases this process occurs because the spouse finally escapes from pressures exerted by the more controlling and dominant marriage partner; in other cases the dependent spouse gets wind of information suggesting that the other spouse held back key details about marital assets. When a former spouse consults a lawyer for advice about attacking the property settlement, the lawyer should keep the timing issue in mind and proceed with all deliberate speed. If preliminary investigation and research suggest that the client might be entitled to some relief, the lawyer should take care to use the correct procedural vehicle for the desired relief - usually a motion in the original dissolution action. It is probably wise to frame the motion to present a coherent single theory that would justify relief, as many courts seem averse to a scattershot approach that sets out several different, and possibly conflicting, grounds for relief.

The spouse defending against a motion for relief from judgment may be able to raise an assortment of substantive and procedural matters, such as the movant's lack of due diligence and reliance, failure to seek relief in a timely fashion, or even that the conduct in question did not constitute fraud.

When all is said and done, the spouse who carries the day will probably be the one who can convince the trial court that the equities weigh in his or her favor. The outcome in these proceedings is often difficult to predict, however, because the equities are usually not crystal clear.

This article reviews recent cases in which a former spouse sought relief from judgment based on alleged fraud or duress. Part I discusses recent cases addressing fraud claims; Part II reviews recent decisions involving duress claims; Part III examines procedural matters and miscellaneous issues.

I. Fraud

General Rule. A party attempting to set aside a decree on the ground that it was procured by fraud must make the traditional showings required to prove fraud. A Missouri appeals court said that the spouse seeking to prove fraud must show: (1) a representation, (2) its falsity, (3) its materiality, (4) the speaker's knowledge of the falsity, (5) the intent that the statement should be acted upon by the other party in the manner contemplated, (6) that party's ignorance of the falsity, (7) reliance on the truth, (8) the right to rely thereon, and (9) injury. Mitchell v. Mitchell , 888 S.W.2d 393 (Mo. Ct. App. 1994). By analyzing these showings, counsel for the spouse accused of fraud may be able to formulate a defense theory. For example, counsel might assert that the alleged misrepresentation was one of opinion rather than fact. E.g., Mitchell v. Mitchell, supra (in her motion claiming that husband misrepresented the value of his pension, wife failed to establish that he made a representation which was false; a statement as to the value of property is ordinarily considered an opinion, not a statement of fact); see also Brown v. Brown , 863 S.W.2d 432 (Tenn. Ct. App. 1993) (husband's alleged statements to wife that his financial condition was bad and that she would receive all he could afford were mere expressions of opinion). Contra Shafmaster v. Shafmaster , 138 N.H. 460, 642 A.2d 1361, 1365 (1994) (rejecting husband's contention that values included in his financial statements were opinions rather than facts, court stated that "[o]pinions of value, if made to mislead, are fraudulent representations").

Counsel might also argue that the accused spouse did not know, or have reason to know, that the representations were false. E.g., Castro v. Castro , 31 Conn. App. 761, 627 A.2d 452 (1993) (fraud not proven, where husband claimed wife falsely portrayed her financial status by omitting an expected settlement, but at time of dissolution wife was not aware that she would receive any additional payments). Along the same lines, counsel might characterize the representation or omission as a mistake or oversight made without intent to deceive. E.g., In re Marriage of Broday , 256 Ill. App. 3d 699, 628 N.E.2d 790 (1993) (given trial court's finding that husband lacked intent to deceive, element of scienter necessary to establish fraud was missing).

Extrinsic Fraud Versus Intrinsic Fraud. Many states distinguish between extrinsic fraud, usually characterized as fraud on the court, and intrinsic fraud, the less serious evil of fraud committed against a party. This distinction can be critical when the fraud is not discovered right away. Many jurisdictions allow judgments to be attacked for intrinsic fraud only within a short time after judgment, but have a longer time limit, or no time limit at all, for attacks grounded on extrinsic fraud.

A former spouse succeeded in proving extrinsic fraud in Grissom v. Grissom , 30 Cal. App. 4th 40, 35 Cal. Rptr. 2d 530 (1994). In 1980, the husband presented the wife with an "Appearance, Stipulation, and Waiver," which he told her had to be signed and filed in order to dismiss their pending divorce action. Unbeknownst to the wife, this document contained a property division and permitted the husband to obtain a divorce without notifying her. He did obtain the divorce, but did not tell the wife, and continued to live with her as if they were still married. When the wife found out the true facts 10 years later, she filed a motion claiming that she had been fraudulently induced to sign the document. The appellate court upheld a finding of extrinsic fraud. Where a confidential relation exists and one of the parties signs an instrument without reading it in reliance on false representations as to its contents by the other party, the instrument may be avoided, the court declared.

Misrepresentation of Asset Values. Courts disagree on whether nondisclosure of property values or misstatements amount to fraud so as to support an attack on the judgment. Compare Lee v. Johnson , 858 S.W.2d 58 (Tex. Ct. App. 1993) (alleged undervaluation of ranch was not extrinsic fraud) with Sanborn v. Sanborn , 503 N.W.2d 499 (Minn. Ct. App. 1993) (husband's misrepresentation regarding value of his business constituted fraud on the court). This disagreement continues to be reflected in recent cases.

Misrepresentation of asset values does not constitute extrinsic fraud, a California appeals court held, refusing post-judgment relief to a wife who had been misled about the value of her husband's benefits. In re Marriage of Melton , 28 Cal. App. 4th 931, 33 Cal. Rptr. 2d 761 (1994). In the parties' dissolution proceedings, the administrator of the husband's professional baseball pension plan provided incorrect information about the husband's projected benefits. Based on this information, the wife agreed to accept a specified amount as her one-half share of the monthly retirement payments, and the stipulated judgment reflected that agreement. When the husband retired and the wife found out that his payments were actually much larger than expected, she sought relief from the judgment. The appeals court held that the husband's conduct, while it may have been "sharp practice," did not involve extrinsic fraud so as to warrant relief from the judgment. A party's representation of the value of an asset, favorable to himself, does not constitute extrinsic fraud, the court said. See also Mitchell v. Mitchell, supra (statement as to value of property is not a representation of fact and, thus, cannot be fraud).

A Michigan appeals court held that a spouse who allegedly misrepresents his asset values in the divorce proceedings cannot be sued for fraud. Nederlander v. Nederlander , 205 Mich. App. 123, 517 N.W.2d 768 (1994). The wife claimed that the husband misrepresented the value of his interest in two companies, in that he knew and did not reveal that one company would be merged into a new entity, and that the other was in the process of selling valuable real estate. The court held that the wife's claim was unenforceable as a matter of law. Allowing a party to file an action for fraud whenever the other party, more than one year after the divorce judgment is entered, liquidates assets or consummates a business transaction is contrary to the public policy behind the finality of judgments, the court declared.

While it suggested that a spouse who suspects fraud could seek relief from the judgment within one year after the judgment, the court did not indicate whether misrepresentation of asset values would amount to fraud permitting relief from the judgment.

The New Hampshire Supreme Court, however, held that a husband acted fraudulently when he permitted the wife to rely on valuation information that he knew was dated and false. Shafmaster v. Shafmaster, supra . Once financial information was requested and provided, the husband had an ongoing obligation to provide current and accurate financial information, the court said. It noted that if the husband had been required to comply with the New Hampshire court rule requiring financial affidavits to be attached to stipulations, he would not have been able to perpetrate his fraud without making a false statement under oath. To avoid a repetition of these circumstances, the court held that the full disclosure provisions of the rule, Super. Ct. R. 158, are mandatory and may not be waived by the parties or the court.

Reliance and Due Diligence. To prove fraud, the accusing spouse must prove reliance on the misrepresentation, and in many cases the necessity for a showing of reliance is a major hurdle for the spouse seeking relief.

Recent cases reflect continuing disagreement among courts about what efforts each spouse must make to investigate the other spouse's representations about assets and their values. Some courts take the view that each spouse has a duty to exercise reasonable diligence to ascertain the value of assets. E.g., In re Marriage of Melton, supra (although the husband did misrepresent the present value of his future pension benefits, with the assistance of the plan administrator, the wife's attorney had a copy of the pension plan and could have discovered, in the exercise of reasonable diligence, that the plan was amended by increasing benefits from time to time; further, her counsel could have conducted discovery on the plan to find out what the husband's projected benefits would be); Nederlander v. Nederlander, supra (spouse's exercise of due diligence during the course of liberal discovery should expose any intrinsic fraud that may be present in the divorce proceeding); Mitchell v. Mitchell, supra (wife could have obtained her own evaluation of husband's pension, so she had no right to rely on husband's representations about its value).

Another view, exemplified by Shafmaster v. Shafmaster, supra , is that spouses are entitled to rely on the other spouse's disclosures, at least where the parties have exchanged information in a spirit of cooperation with the goal of reaching an agreement on property division. During the settlement negotiations in Shafmaster , the wife's lawyer proposed that a provision be included in the agreement that each party had been forthright with the other regarding the current status and value of their assets and financial affairs. The husband's lawyer refused this provision, yet the wife's lawyer took no further steps to obtain discovery and instead agreed to the settlement. The husband argued that this was a red flag which put the wife on notice that she could not rely on his disclosures. The New Hampshire Supreme Court held, however, that the wife was entitled to rely on the accuracy of the information which the husband had provided to her. The unique circumstances involved in ending a marriage on no-fault grounds and equitably dividing property by agreement enhance the parties' obligation to deal with each other fairly and truthfully, the court said. "In equity, we will not allow the defendant to perpetrate a fraud based on an eleventh hour change of negotiating posture from cooperation to combat." 642 A.2d at 1366. Under the circumstances, the wife did not have a duty to conduct discovery or further investigate the husband's representations, the court concluded.

Some courts have analyzed the reliance issue in terms of whether the spouses still had a confidential or fiduciary relationship at the time of the alleged misrepresentations. For example, in Nederlander v. Nederlander, supra , which rejected the assertion that a former spouse could file an action for fraud based on alleged misrepresentations about asset values, the court pointed out that a fiduciary relationship does not exist between spouses at the time of divorce. See also Grissom v. Grissom, supra (since husband and wife had resumed their confidential relationship when husband induced wife to sign document, it was not unreasonable for the wife to rely on the husband's representations about the document and sign it without reading it).

Swearing Contests. Although it is difficult to predict the outcome of proceedings for relief from judgment based on fraud, the trial court is likely to reject the claim when the accusing spouse relies solely on his or her own testimony and that testimony conflicts with objective evidence. For example, in In re Marriage of Hamm-Smith , 261 Ill. App. 3d 209, 633 N.E.2d 225 (1994), the appeals court held that the facts fell woefully short of establishing fraudulent misrepresentation or concealment. No evidence supported the husband's contention that the wife fraudulently led him to believe that her attorney was also representing him. The wife denied ever saying that, and the husband admitted he never met the lawyer, never consulted with him, and never received advice from him. Moreover, the judgment order stated that the lawyer represented the wife, and that the husband appeared pro se.

II. Duress

General Principles. In a recent Connecticut case where a wife won relief from a stipulated dissolution case on the ground of duress, the state's high court set out a general rule for evaluating claims of duress. To conclude that a stipulated decree resulted from duress, the finder of fact must determine that the misconduct of one party induced the party seeking to avoid the stipulated judgment to manifest assent thereto, not as an exercise of that party's free will but because that party had no reasonable alternative in light of the circumstances as that party perceived them to be, the court said, citing Restatement (Second) of Contracts Sec. 175 comment b (1981). In this case, the husband's emotional abuse of the wife led her to believe that she had no real alternative but to sign the stipulated settlement, the court said. Jenks v. Jenks , 232 Conn. 750, 657 A.2d 1107 (1995).

An Illinois appellate court stated these general rules about duress:

Duress has been defined as including the imposition, oppression, undue influence or the taking of undue advantage of the stress of another whereby one is deprived of the exercise of his own free will. . . . The person asserting duress has the burden of proving, by clear and convincing evidence, that he was bereft of the quality of mind essential to the making of the contract.

In re Marriage of Hamm-Smith, supra , 633 N.E.2d at 230 (citations omitted). After discussing several Illinois cases, the court rejected the husband's contention that he entered into an unfavorable settlement agreement under duress because he was under time constraints to finalize the dissolution before he was somehow tricked into impregnating the wife. When the agreement was negotiated and finalized, the parties were no longer living together as husband and wife, the court pointed out. Although the husband was taking prescription medication to control depression, he presented no evidence that he was bereft of the quality of mind essential to the making of the agreement, the court added.

In an Arizona case, the court held that distress resulting from external pressures on a spouse does not constitute duress. Sharp v. Sharp , 179 Ariz. 205, 877 P.2d 304 (Ct. App. 1994). The wife, who was facing criminal charges, agreed to a settlement but later claimed that she had been forced to assent because the husband said he would give her no financial assistance until she signed the agreement. The court held that her claim did not even merit a hearing because the husband's conduct was not wrongful. Under Arizona case law, the court observed, the test of what act or threat constitutes duress is determined by considering whether the threat placed the party entering into the transaction in such fear as to preclude the exercise of free will and judgment. By definition, an act or threat must be wrongful to constitute duress, the court said. It held that the wife's distress due to external circumstances - the criminal charge and her dire financial situation - did not raise the husband's entreaties to sign the agreement to the level of duress. The husband was not responsible for the criminal charge, and the wife could have petitioned the trial court for temporary maintenance, the court noted.

A New Jersey appeals court held that a husband's refusal to consent to a Jewish ecclesiastical divorce, known as a "Get," unless the wife signed a settlement agreement constituted duress. The extreme pressure which the husband exerted on the wife in return for his agreement to the Get rendered the settlement agreement invalid, the court held. Segal v. Segal , 278 N.J. Super. 218, 650 A.2d 996 (App. Div. 1994). As persuasive authority, the court cited Golding v. Golding , 176 A.D.2d 20, 581 N.Y.S.2d 4 (1992), and Perl v. Perl , 126 A.D.2d 91, 512 N.Y.S.2d 372 (1987).

Lapse of Time Between Conduct and Agreement. A lapse of time between the allegedly wrongful conduct and the execution of the agreement does not necessarily bar a finding of duress, according to the Connecticut Supreme Court in Jenks .

The trial court, granting the wife's motion for relief from judgment, found that during the marriage the husband emotionally abused the wife, "feeding on her need for his approval and her lack of self-confidence." Jenks v. Jenks, supra , 657 A.2d at 1109. The trial court also pointed to a history of ultimatums issued by the husband as support for its finding of duress. The appellate court rejected the finding of duress, however. It was untenable to argue, as the wife did, that duress affecting the power of a spouse to exercise free will, at any time during the marriage, would be sufficient to warrant the opening of a stipulated dissolution judgment, the appellate court said.

On further appeal, the state's high court agreed that it would cast an unwarranted shadow on negotiated divorce settlements if duress occurring at any time during a marriage could furnish grounds for relief from a decree. Here, however, the husband's emotional abuse of the wife immediately preceding the pretrial conference led her to believe that she had no real alternative but to sign the stipulated agreement when it was presented to her. Even though there was little direct contact between the parties within the six weeks preceding the pretrial conference, the evidence permitted a reasonable inference that the wife's will was overborne, the court decided. It pointed to the testimony of a mental health professional, the testimony of the wife's former attorney, who described "mind games" on the husband's part, and testimony by eyewitnesses, who described the husband's threatening and intimidating behavior toward the wife during the dissolution proceedings.

Prior Experience with Property Settlement Negotiations. A spouse who has been divorced before may have a particularly difficult time proving duress. In Mitchell v. Mitchell, supra , the wife claimed that she did not freely and voluntarily agree to the separation agreement. She testified that she was not happy with the terms of the settlement agreement, and claimed that the husband had previously threatened to kill her if she did not agree to his terms. The Missouri appellate court agreed with the trial court that the wife had not proven duress. She offered no evidence of the husband's coercion other than her own testimony, which the trial court obviously found not to be credible, the court pointed out. Moreover, "[b]ecause of her prior experience with property settlement negotiations, we may infer she was fully aware of her property rights and the effects of signing the separation agreement." 888 S.W.2d at 398.

III. Miscellaneous Issues

Time Limits; Delay. Many states have adopted postjudgment relief rules modeled on Rule 60(b) of the Federal Rules of Civil Procedure , which requires postjudgment motions for relief on the ground of fraud to be filed no later than one year from the date of the divorce judgment. See, e.g., Nederlander v. Nederlander, supra (if a party suspects that the other party has committed fraud during a divorce proceeding, then the party may seek redress within one year after the judgment is entered under state procedural rules for relief from judgment).

A fraud-based motion for relief may be untimely even if it is filed within one year, however, because rules modeled on Rule 60(b) require that such motions be filed as well within a reasonable time . See, e.g., In re Marriage of Larson , 880 P.2d 1279 (Kan. Ct. App. 1994). Hence, in order to head off a claim of untimeliness, counsel for the accusing spouse should file the motion as soon as reasonably possible. In In re Marriage of Larson, supra , the husband's motion to modify was filed one day less than one year from the date of the divorce decree. The pertinent Kansas statute on motions for postjudgment relief specifies that "[t]he motion shall be made within a reasonable time, and for reasons (1), (2), and (3) [fraud] not more than one year after the judgment, order, or proceeding was entered or taken." Kan. Stat. Ann. Sec. 60-260(b).

The Kansas appeals court held that the one-year period represents an extreme limit, and a motion on a ground subject to the one-year requirement may be rejected as untimely if not made within a reasonable time even though it is filed within one year. As authority, the court cited 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2866 at 232 (1973), as well as numerous federal cases and state decisions in accord. The closer to the extreme limit the motion is filed, the heavier the burden is to show that the delay was reasonable, the court added.

The husband in Larson supported his motion by evidence that he had been misled by a third party as to the financial condition of his business. An audit two months after the settlement showed that the true financial condition of the feedlot was much worse than previously expected, yet the husband waited nine months to file a motion to modify. The court concluded that the husband's motion was not filed within a reasonable time, given his delay, his apparent knowledge of problems when the agreement was signed, and the impossibility of restoring the parties to the status quo on the date of the divorce decree. The law charged the husband with the acts of his attorney, and the failure of his attorney to act in a timely fashion did not excuse the delay in the filing of the motion, the court said.

In some states, a rule's time limit for motions based on fraud may not apply if the fraud is of the extrinsic variety. For example, in Grissom v. Grissom, supra , the court held that a wife was entitled to relief from a divorce judgment entered in 1980, even though she did not challenge the judgment until 1991. Rejecting the husband's argument that the motion was filed too long after the divorce judgment, the court pointed out that he prevented the wife from learning about the divorce judgment until 1990. When ruling on claims of delay, the court said, courts must look to the extent of prejudice to the opposing party and to the reasonableness of the moving party in not filing the motion earlier. Here, the husband did not articulate any prejudice from the delay, and the wife's delay was not unreasonable, the court found.

Procedure. Procedural avenues for relief from judgment could include a motion for relief under a state counterpart to Fed. R. Civ. P. 60(b) or an independent action alleging fraud.

Case law in some states permits an independent suit. E.g., Sargent v. Sargent , 622 A.2d 721 (Me. 1993) (state rule on reopening judgments, which does not permit a motion for relief based on fraud after one year, does not limit the court's power to entertain an independent action for fraud and misrepresentation); see also Chrun v. Chrun , 751 S.W.2d 752 (Mo. 1988) (independent suit in equity may be maintained to set aside dissolution judgment).

Other states, however, take the view that a motion in the dissolution action is the only mechanism for obtaining relief for fraud. In Nederlander v. Nederlander, supra , a Michigan appeals court held that a party who suspects that the other party has committed fraud during a divorce proceeding may seek redress under state procedural rules for relief from judgment, but may not file an independent action for fraud. Allowing an independent action would be contrary to the public policy behind the finality of judgments, the court reasoned. See also Dodd v. Estate of Yanan , 625 N.E.2d 456 (Ind. 1993).

A spouse who files for relief under a state procedural rule must stay within the framework of the rule, as Spicuzza v. Spicuzza , 886 S.W.2d 660 (Mo. Ct. App. 1994), illustrates. After the parties' separation agreement was incorporated into their dissolution decree, the wife filed a motion under the state rule on relief from final judgments. She argued that because of the trial court's representations at a pretrial conference, she believed her state teacher's pension was an economic factor to be considered when dividing property. The judgment should be modified, she contended, because of Gismegian v. Gismegian , 849 S.W.2d 201 (Mo. Ct. App. 1993), holding that such a pension is separate property and cannot be considered in the division of marital property. The appeals court held that her motion failed to meet the requirements of the rule. The motion said she was not seeking to set aside the decree, but rather to amend or modify the division of property provi sions of the decree, yet the rule makes no provision for relief from only part of a judgment, the court noted. Moreover, the court observed, the motion argued that the agreement was unconscionable because it did not set aside her state teacher's pension as separate property, yet the rule does not list unconscionability as a basis for relief.

Representation by Counsel. The fact that the spouse seeking relief was represented by counsel in the dissolution proceeding has been cited as evidence that the spouse did not rely on the other spouse's misrepresentations, or that the spouse's reliance was unreasonable. E.g., In re Marriage of Shaner , 252 Ill. App. 3d 146, 624 N.E.2d 1217 (1993) (no fraud; no reasonable reliance where each spouse was represented by counsel).

Courts in recent cases, however, have allowed spouses to maintain an action or motion based on fraud after equitable distribution even when the spouse was represented by counsel in the equitable distribution proceedings. E.g., Grissom v. Grissom, supra (fact that wife was represented by counsel did not preclude a finding of extrinsic fraud; representation by counsel is not decisive but is one circumstance to be considered in determining whether fraud has been practiced); Shafmaster v. Shafmaster, supra (husband's conduct in allowing wife to rely on dated valuation information constituted fraud justifying relief even though wife was represented by counsel in divorce proceedings).

Courts in recent cases have also allowed spouses to pursue a postjudgment motion for relief based on duress even if the spouse was represented by counsel in the equitable distribution proceedings. See, e.g., Jenks v. Jenks, supra (court noted that testimony of wife's former attorney supported her claim of duress); cf. Manosh v. Manosh , 160 Vt. 625, 648 A.2d 832 (1993) (fact that wife was represented by counsel throughout the proceedings did not compel dismissal of her postjudgment motion claiming that agreement was unconscionable). On the other hand, the fact that the spouse claiming duress was represented by counsel is a consideration that weighs against the claim of duress. See Mitchell v. Mitchell, supra .

The fact that a wife signed an agreement without consulting or notifying her lawyer did not make the agreement invalid, an Arizona appeals court ruled. Sharp v. Sharp, supra . The wife contended that the husband acted wrongfully by negotiating directly with her even though she had an attorney and by pressuring her to accept the agreement without consulting her counsel. Rejecting that argument, the court pointed out that the wife was not prevented from contacting her lawyer. She unsuccessfully tried to call the lawyer collect at one point, and she had several weeks to contact her attorney while she negotiated the settlement terms, the court observed.

Acceptance of Benefits Under Challenged Decree. As a general rule, a party who accepts the benefits of a judgment thereby waives the right to challenge it on appeal, and this rule has been held to apply in divorce actions. E.g., White v. White , 434 N.W.2d 361 (N.D. 1989). In Shafmaster v. Shafmaster, supra , a spouse accused of fraud attempted to invoke the acceptance-of-benefits rule to block a postjudgment motion to modify filed by the other spouse.

The husband in Shafmaster argued that the wife was barred from challenging the validity of their stipulation because she had elected to receive benefits under it. He relied on the general rule requiring a party seeking equitable relief from a judgment to return any benefits received under the judgment. The wife acknowledged the general rule but pointed to an exception that does not require relinquishment of benefits if it is undisputed that the appealing party is entitled to at least the amount of property or benefits received. The New Hampshire Supreme Court rejected the husband's argument, and held that the wife was entitled to relief notwithstanding her acceptance of benefits under the decree. "We hold that parties to a divorce are not required to relinquish benefits derived from a property settlement in order to petition to set aside a divorce decree on grounds of fraud, particularly where, as here, the petitioner is probably entitled to more than she has received." 642 A.2d at 1367.

Multiple Grounds for Relief. As a strategic matter, it is probably wise to pursue a single, unified theory as a basis for relief rather than claiming relief on several unrelated grounds. The client's credibility may be undermined if the grounds alleged for relief are conflicting or if he or she seems to be grasping at straws in order to avoid a bargain that later turned out to be unsatisfactory.

For example, in In re Marriage of Hamm-Smith, supra , the husband's postjudgment petition for relief alleged that the agreement was procured through fraud and duress and that it was unconscionable. On appeal after the trial court rejected his motion, the husband claimed that the trial court should have looked for other grounds to vacate the decree, including mutual mistake or new evidence. The Illinois appellate court agreed with the trial court that the husband was not entitled to relief. A court should not set aside a settlement agreement merely because one party has second thoughts, the court declared.

See also Mitchell v. Mitchell, supra (rejecting wife's claims that the separation agreement was unconscionable, that the husband fraudulently misrepresented the value of his pension, that she signed the agreement under duress, and that the separation agreement was based on a mutual mistake about the value of the pension).

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