Until a judge ratifies a settlement agreement and incorporates it into a final decree of divorce, a party to the agreement remains free to attack it and seek rescission, if sufficient grounds exist.(1) But what grounds justify repudiation of a settlement agreement in a divorce action, and how and when may rescission be sought? This article addresses those issues.

A trial court has the discretion to approve or reject a divorce settlement agreement in whole or in part and to make any portion of the agreement a part of the final decree.(2) Before incorporating a settlement agreement into a final judgment and decree of divorce, a judge must independently determine whether the agreement’s contents are within the bounds of the law.(3) Those principles should enable a party to argue any equitable reason compelling the court’s rejection of a settlement agreement.

In addition to general equitable arguments for repudiation, at least two specific bases for repudiation exist: namely, anticipatory breach of contract and impossibility of performance.

An anticipatory breach of a contract occurs when one party repudiates his contractual obligation to perform prior to the time such performance is required under the terms of the contract. When one party to an agreement absolutely refuses to perform and repudiates the contract prior to the time of his performance, the innocent party can consider herself absolved from any future performance on her part and elect various possible remedies, including the right to rescind the agreement.(4)

Impossibility of performance seems fairly self-explanatory. Under Georgia law, “[p]erformance, to be effectual, must be accomplished by the party bound to perform … and must be substantially in compliance with the spirit and the letter of the contract…”(5) “Impossible, immoral, and illegal [contract] conditions are void and are binding upon no one.”(6) Accordingly, impossibility of performance raises a valid defense to the enforcement of a contract.(7)

To rescind a divorce settlement agreement, a spouse must take care to bring her arguments before the court via repudiation motion (or otherwise) sufficiently in advance of the trial court’s consideration of the agreement for incorporation into a final decree. For instance, in one case, a husband was precluded from seeking rescission of a settlement agreement because he filed his rescission motion only one day before the trial court entered a final decree incorporating the agreement.(8) A motion to repudiate must be filed and determined before the trial court has entered a judgment incorporating the agreement.(9)

(1) See Rodgers v. Rodgers, 358 Ga.App. 223, 854 S.E.2d 558, 561-562(1) (2021); and Guthrie v. Guthrie, 277 Ga. 700, 701, 594 S.E.2d 356 (2004).

(2) Buckner v. Buckner, 294 Ga. 705, 755 S.E.2d 722, 727(2) (2014); and Guthrie, supra, 277 Ga. at 701-702(1).

(3) Buckner, supra, 755 S.E.2d at 727(2).

(4) CCE Federal Credit Union v. Chesser, 150 Ga.App. 328, 339(1), 258 S.E.2d 2 (1979); Nikas v. Hindley, 98 Ga.App. 437, 441-442, 106 S.E.2d 335 (1958); and Cutcliffe v. Chesnut, 122 Ga.App. 195, 201(2), 176 S.E.2d 607 (1970).

(5) O.C.G.A. § 13-4-20.

(6) O.C.G.A. § 13-3-5.

(7) See Allen v. CFYC Construction, LLC, 354 Ga. App. 890, 842 S.E.2d 297, 301 (2020).

(8) Rodgers, supra, 854 S.E.2d at 561-562(1).

(9) See Leventhal v. Citizens and Southern National Bank, 249 Ga. 390, 393(3), 291 S.E.2d 222 (1982).

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