What's the Next Step After A Separation Agreement is Signed in Delaware?
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Answer:
I read your question as "what's next?", but am unsure whether you wish to rescind the separation agreement or seek a divorce. A separation agreement is a formal agreement between you and your spouse. Separation and property agreements may be entered into before a divorce is filed to be effective when signed, or may be entered into after the divorce is filed to settle the case of parts thereof. It provides for support and other financial conditions until the divorce is final. If it is not in the form of a court order the agreement is not binding. A separation agreement usually contains provisions relating to child support, visitation, alimony, responsibility for joint bills, who will remain in the marital residence and who will pay for its upkeep and how to split any tax refund and tax deductions.
Rescission is the name for the remedy that terminates the contractual duties of both parties, while reformation is the name for the remedy that allows courts to change the substance of a contract to correct inequities that were suffered. In order to have a rescission, both parties to the contract must be placed in the position they occupied before the contract was made. Courts have held that a party may rescind a contract for fraud, incapacity, duress, undue influence, material breach in performance of a promise, or mistake, among other grounds.
Duress is defined as the constraint of another’s will so that he is forced to give consent when he is not in reality willing to do so. Duress must destroy the free will of a party and cause him to do an act or form a contract not of his own volition. The alleged coercive event must be of such severity, either threatened, impending, or actually afflicted, so as to overcome the mind and will of a person of ordinary firmness. Duress is viewed with a subjective test, looking at the individual characteristics of the person allegedly influenced, and duress does not occur if the person has a reasonable alternative to succumbing and fails to avail themselves of the alternative.
A spouse has a right to reside in the marital residence unless there is a court order otherwise. Sometimes when a divorce action is filed, one party will ask for exclusive possession of the marital residence to be awarded pending the distribution of assets in the divorce decree. In some cases, a party will ask for a restraining order to prevent another spouse from entering the premises. Typically, a threat of harm needs to be shown before the court will grant a restraining order. However, without a court order, a spouse may not lock another co-owner spouse out of the home when the other spouse hasn't already abandoned the premises. However, if you have grounds to fear immediate violence, it may be reasonable to lock your spouse out until the police can be contacted and a restraining order obtained. Emergency, temporary court orders can be obtained in extreme circumstances.
