“My wife and I signed off on the basic terms of our divorce agreement six months ago. The value of our assets has dropped substantially since then, but she won’t take a penny less. What can I do?”
In San Diego, many assets have decreased in value significantly in 2007, 2008, and now in 2009. These assets have included real property as well as 401K and IRA accounts and many others. I’ve discussed both sides of the enforcement below in a summary format, as this is an extremely complex area of the law.
If the basic terms of the divorce agreement reached six months ago are not agreeable for the judgment due to change in circumstances, then you should set the case for a mandatory settlement conference or trial and inform the judge that the agreement is not an equal division of the assets and debts, due to the diminishment of the assets in value, and that a mistake was made in the analysis since you did not know about the diminishment in value. It is also important to analyze the different assets, as some are valued as of the date of separation and some are valued as of the date of trial, and this can make a significant difference in the legal analysis. You should ask the judge not to consider the agreement as a permanent order and to allow further litigation to reach a different judgment.
If both spouses have signed the divorce agreement and it meets all of the procedural requirements for obtaining a judgment, then either of you can file a motion under the Code of Civil Procedure Section 664.6 by asking for a judgment even if the other spouse objects. The legal procedure is to file a motion called an Order to Show Cause with a Brief containing Points and Authorities as well as the Declaration of the spouse who wants to have the judgment finalized and not renegotiate. The judge will either grant or deny this motion for judgment. The language of the Code reads as follows: “If parties to pending litigation stipulate, in a wiring signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement agreement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement”. In your case, your wife may ask the judge to make the agreement the permanent order and not allow further litigation.
Roy Doppelt practices family law in San Diego with Pinkerton, Doppelt & Associates.