How to nullify a consent agreement in a re-opened divorce case as executor?

Question

I am facing a complex situation where I was brought into a re-opened divorce financial case in 2018 as the executor of an estate. I am the plaintiff's son but was never formally substituted into the case, nor did I receive proper legal advice about my role as executor. During negotiations, which I participated in without formal substitution, a consent agreement was made granting the ex-spouse full control over execution. A property was sold, but the proceeds were not divided as agreed, and the judgment was never docketed. Key items that led to reopening the divorce financials were unsubstantiated or immaterial, and there was no discovery on the ex-spouse's retirement accounts. The consent agreement also included unenforceable concessions. I believe the entire agreement should be nullified, and the case should return to the 2017 default divorce judgment, which withstood a prior challenge regarding improper service. No legal actions have been taken since the case in 2018. How can I go about unraveling this situation and addressing these issues?

Richard Diamond · Answer

If I understand the setting correctly,  
*your parent passed away  
*you were the executor of the estate.  
* as executor, you participated in the sale of a piece of real estate on behalf of your parent  
* as part of the sale of that piece of real estate, you signed documents to permit the sale to go through 
* the other spouse handled the closing for the sale of the property  
* the monies from the sale of that property were not shared correctly with the estate   
* the spouse did not divide specific assets from the marriage with the estate  
* you believe the other spouse has money that should have been paid over to the estate or divided with the estate  
 
Presuming im 85% correct on my understanding of your inquiry, you need to schedule a consultation with a divorce lawyer and potentially with an estate litigation lawyer. The first question I have is whether your parent passed away before the divorce matter, during the divorce matter or after the divorce matter and whether your claim that money was not properly divided is based on terms agreed upon in a divorce or in settlement discussions.

James L. Arrasmith · Answer

What you are describing raises several issues of procedure and fairness. Since you were never formally substituted into the case as executor, you may be able to argue that the consent agreement is invalid because you lacked proper legal standing at the time. Courts generally require that an executor be officially recognized by substitution before taking actions on behalf of an estate. If that step was skipped, it undermines the legitimacy of any agreement you were pushed into signing. 
 
You can also raise the point that the consent agreement was based on unsubstantiated claims and omitted key discovery, such as retirement accounts. If the judgment was never docketed and the property proceeds were not divided as agreed, you may argue that the agreement is both unenforceable and inequitable. Showing that the concessions made were beyond what the law allows or that the other party failed to uphold their end strengthens your position for asking the court to set it aside. 
 
The practical step would be to file a motion with the court that handled the divorce, asking to vacate or nullify the consent agreement. In your motion, you can request that the matter revert to the 2017 default judgment, which already survived a challenge. Since there has been no action since 2018, you should also highlight the long period of inactivity and the prejudice caused by the other side’s control over execution. This would put the issue back before the court and give you a chance to argue for a fair resolution.

Q: How to nullify a consent agreement in a re-opened divorce case as executor?