Many times our clients come to us after having entered into a settlement agreement or an agreed order and are now suffering the consequences of same. They often ask me, “how could a Judge order that?”, and the reality often times..he/she would not have ordered that if you had not agreed to it.
There are several factors that lead people to agree to some pretty ridiculous things. For one, they may be in an emotional state and do not want to go through the process of a hearing or trial. For others, they just do not have the money to go to a hearing or trial. Finally, for some, there are certain important provisions they really want and so they settle for other provisions that they do not see as “big deal” in order to get what they want. That is the point of negotiations.
The problem is when the party did not realize the implications of having agreed to said provision. On many occasions, the judge would not have had the jurisdiction to order such a provision, such as restricting a third party from doing something or even ordering a third party to pay a certain debt. Had the parties gone to trial, the judge would not have ordered that. However, the party takes the gamble on going to trial and suffering other consequences such as not securing what he/she really wants out of the hearing/trial.
One way to get out of such provisions is by alleging “change of circumstances”. For example, maybe a restriction on alcohol was warranted then, but now its been five years and no DUI’s. Another example would be that the children are older now and do not need restrictions on overnights or introduction to a significant other.
If there is no change of circumstances or if that provision does not apply, often times the judge’s hands are tied and they will simply say, “that is what they agreed to counsel, there is nothing I can do about that”. For many of my cases, it has meant years and years of litigation and thousands of dollars over one agreed term.
As such, it is important to have your attorney review and counsel you on the provisions in any settlement negotiations that you have overlooked so that it does not come back to haunt you later.