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Separation Agreements and Duress

Mejia v. Mejia, No.COA19-438 (May 2020).

In North Carolina, we typically see two types of agreements in the realm of marriage and divorce. First is the Prenuptial Agreement; the second is the Separation Agreement. Separation agreements often contain provisions that resolve issues of child support, alimony, child custody, and distribution of marital property. At times, one party may be strong-armed into signing an agreement. In that case, the party may claim Duress. Below, we discuss a case in which a Husband claimed Duress to prevent enforcement of a Separation Agreement.

  • Facts: Husband and Wife were married with two children. Years later, they separated, and the parties entered into a separation agreement in 2016. Terms in that agreement outlined custody and child support, paying Wife $2,000 a month. Husband filed claims for custody and child support in 2017, and Wife filed counterclaims for breach of contract. Husband replied and at trial argued for a defense of Duress.


  • Issue: Was the trial court’s findings for Duress supported by competent evidence?


  • Holding: Yes


  • Rationale: A contract entered into under Duress is not enforceable by a court because the party acting under Duress is incapable of acting with free will. Wrong acts or threats are essential elements of Duress, and the lawfulness of an act has no bearing on the wrongfulness of it. The trial court found that Wife had specifically told Husband that he was not to see the children unless the agreement was signed. Also, Father said that he genuinely believed that he had to sign the agreement in order to see the children. Those findings were supported by the testimony that the court heard: that Wife had told Husband that “if you want to see your kids, you’ll meet me at the bank.” And at the bank, “if you don’t sign . . . I will take the kids away. . . you’re not going to see your kids.” The trial court also heard of past incidents where Wife withheld communication between Husband and children when she was angry with him. Together, the court found that there was evidence that Wife was capable of acting on her threats to withhold the children and that Husband reasonably believed that he would not see his children unless agreement was signed.


If Duress is present in the formation of a contract, it may not be a total barrier to enforcement. Ratification is acting in conformity with the contract. Wife argued that Husband did so when he made the child support payments. However, ratification cannot occur until the conditions of Duress have subsided. The trial court found that those conditions had not subsided. Again, Husband testified that he made those payments because he was still in fear of losing touch with his children.


  • Lessons and Observations:


  1. The wife did herself no favors here. Divorces can be acrimonious and heavily contested, especially when it comes to children. But you cannot make threats towards the other party. The tone of every conversation between parties in heavily contested divorce proceedings needs to be professional and overly courteous. The wife’s behavior is an example of what not to do.


  1. Where was the Wife’s attorney during this? Did they counsel the Wife not to speak to the Husband regarding contested legal matters? Did they advise her of the type of tone and methods of communication that she should use when speaking the Husband?