Summary judgment to overturn separation agreement

Summary judgment is available when there is no genuine issue for trial. Because it’s not a trial and evidence can be given by affidavit rather than testimony, summary judgment is a cheaper, more expeditious way to achieve resolution of an issue. However, there are questions as to when summary judgment is, in fact, appropriate as an alternative to a full trial of the issues. In what circumstances can a judge make findings of fact on a summary motion?

In the case of Butler v. Butler, decided at the end of last year, the judge had available to him documentary evidence, affidavits from the parties, and the oral cross-examination that was conducted on the affidavits. Based on that evidence, he was asked to consider on a summary judgment motion whether or not to set aside a separation agreement.

Butler involved a separation agreement which was signed following the end of a very long term marriage. The husband retained a lawyer to advise him, but the wife did not. Despite the fact that she could have elected to get independent legal advice, she chose not to. Eventually, she signed a separation agreement that overwhelmingly benefitted her husband. She waived equalization of the family assets, including the value of the matrimonial home and her husband’s pension. In total, she would have been entitled to $275,000 as an equalization payment, and indefinite spousal support in the range of $2500-3200 per month.

The agreement was held to be unconscionable, and was set aside, based on the following factors: (1) the wife did not obtain independent legal advice; (2) the contract was unfair; (3) she had a lack of knowledge about what she was entitled to as a settlement; (4) in spite of their separation, Mrs. Butler trusted her husband and believed that he was looking out for her.

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