Friday, March 24, 2006
The Tennessee Court of Appeals provides us with a case emphasizing how important it is for family law attorneys to be good contracts scholars. Here, husband and wife entered mediation of their divorce. The terms of the mediation agreement required that their agreement be reduced to writing to be effective. However, the agreement did not require that modifications to the agreement be in writing. So, when the mediator orally recited the terms of the parties' agreement into a tape recorded and recorded their agreement to those terms and when the parties later testified that they had indeed agreed to the terms, the court, citing Corbin on Contracts and the Restatement, concluded that an enforceable agreement had been created regardless of whether it was reduced to writing.
Unlike most contracts, however, settlement agreements in divorce mediation may be repudiated before judicial consideration of them, so long as there has been no detrimental reliance on the agreement. Here Husband argued that he had repudiated the agreement before the court entered a consent judgment based on the agreement. Wife argued that she had partially performed her side of the agreement, but the court of appeals noted that the trial court had taken no evidence on this issue and remanded for further proceedings.
Leslyn v. Ballew, 2006 Tenn. App. LEXIS 191 (March 22, 2006)
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