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Law Pro
Law Pro, Lawyer
Category: Family Law
Satisfied Customers: 24870
Experience:  20 years practicing family law from divorce, custody, support, alimony to equitable distribution
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2007. Time to appeal Massachusetts divorce passed. Mediation

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2007. Time to appeal Massachusetts divorce passed. Mediation possibility or suggestion resolution sought. Partner and ex owned a marital home in Mass valued at 1 million, vacation home Me $200K, combined retirement funds $309K. He told her to keep 209K Ira as she earned more for five years of 30 year marriage. Ex wife "gave" him the house he inherited from his mother in Croatia while awarding herself the marital home in Mass (she sold it for 500K profit) She guestimated value of inherited house at $350K (close enough). Gave him $150K cash from sale of marital home so as to make up the difference of 500K marital home value and his inherited house. He ow realizes inherited property is treated separately in Mass and that she applied the Mass 50-50% split when she took one property and gave him the inherited house, which he cannot sell (land beneath his house owned by his sister who doesn't want to sell). He is 60, architect, good health. She is 50, organizational development consultan
Did you agree to and execute a marriage separation agreement?
Customer: replied 5 years ago.
they did not have a formal separation agreement but she submitted the financial information with the request for divorce. They were married for 30 years. He is 60, she is 57. Kid are in their 30s. Both in good health. It was an amicable divorce.
So he is wanting to change the property division based upon a unilateral mistake.

There are multiple basis's upon which to invalidate an agreement:

Mutual Mistake - When there is a mutual Mistake of Fact with respect to the subject of the contract, the subjective intention of the parties is evaluated by the courts to determine whether there had been, in fact, a meeting of the minds of the parties.
If the mutual mistake significantly changed the subject matter of the contract, a court will refuse to enforce the contract. If, however, the difference in the subject matter of the contract concerned some incidental quality that has no (or negligible) effect on the value of the contract, the contract is binding, even though the mistake altered or removed what had been the incentive to one or both parties to enter the contract.

Unilateral Mistake - Ordinarily, a unilateral mistake (i.e., an error made by one party) affords no basis for avoiding a contract, but a contract that contains a typographical error may be corrected. A contract may be avoided if the error in value in what is to be exchanged is substantial, or if the mistake is caused by or known to the other party. Unilateral mistakes frequently occur where a contractor submits an erroneous bid for a Public Contract. Where such a bid is accepted, the contractor will be permitted to avoid the contract only if the agreement has not been executed or if the other party can be placed in the position that they occupied prior to the contract. If the mistake is obvious, the contract will not be enforced, but if it is inconsequential, the contract will be upheld. The mistake must consist of a clerical error or a mistake in computation, as an error in judgment will not permit a contractor to avoid a contract.

Mistake of Law - When a party who has full knowledge of the facts reaches an erroneous conclusion as to their legal effect, such a mistake of law will not invalidate a contract/agreement or affect its enforceability.

Property division in a divorce in Massachusetts's is based upon equitable principals - not law.

An equity court or court of equity is a court that is authorized to apply principles of equity, as opposed to law, to cases brought before it.

Courts of law apply a strict standard while courts of equity apply justice.

Given that a property division in Massachusetts or alimony can be modified based upon a substantial change in circumstances - you can also modify the property division.

So you would have to say that she inequitably got more of the marital assets than she should have at the time of the property division/distribution based upon unilateral and mutual mistake at the time.

You could petition the court for a modification of the property division.

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Customer: replied 5 years ago.
Thank you. I think he wants to propose a resolution to what qualifies as a mutual mistake vs. pursuing the matter through the courts. The agreement was that they would wait to liquidate the vacation home until the market improved. They listed the house valued at $200K in the financial documents at the time of the divorce for $280K last Spring. No one has looked at it. The legal agreement doesn't address how he can get his 1/2 cash out of the sale at any price. He asked her to buy him out for $125K in August. She said no, she wouldn't if she could (says she doesn't have the money but has the $500k cash from sale of marital home as equity in her condo). The vacation house was bought for 200K cash. What can he propose as a way of remedying the mutual mistake and what would he need to do legally to get out of the agreement she proposed and he signed?
Customer: replied 5 years ago.
Please let me know if you received my question. I revised it and asked Just Answer to forward it to you via e-mail. I keep getting an option to ask another attorney.
I got it. Thanks!

The website is reacting very slowly this morning so I apologize for any seemingly late communications.
Customer: replied 5 years ago.
I am not understanding from your response what you propose as a resolution (without using the courts). She assumed she had the right to claim 1/2 of the inherited property. He assumed she was right so he signed the agreement. How can he explain this so as to propose that she now buy him out of the vacation property for a total of $150K (out of the $280K listed sale price?) If he agreed, is it a mutual mistake (he did not get a lawyer) or since she did the agreement and claimed the inherited property was a marital asset subject to a 50-50% split, did she make a unilateral mistake? The agreement she did was based on her belief that a 50-50% split of everything was equitable. How should he propose remedying this relative to wanting to get out of the coownership of the vacation home which doesn't address how he can get out of it unles it sells? He just wants his cash out and the agreement doesn't state how he can do this.
It's a unilateral mistake that he made - she's probably not going to say or admit that she made a mistake too - thereby a mutual mistake.

His only option is to come up with a proposal as to division of the property based on a 50/50 split.

If she won't agree to modification of the previous division then he has no alternative but to seek the court's intervention in the matter.

I would propose a 50/50 split of the property based upon the law as to what is separate and what is marital property.