In a separation agreement, you can give up some rights or trade some rights away for another. For example, you might give up your right to spousal support to get a larger share of property. But the law says that you can only do this if the process was fair.
The court checks to see if the process was fair at the time you discussed and signed your agreement. Not at the time you challenge the agreement.
The court might decide that the process wasn't fair if:
- one of you, or someone else, forced or pressured the other partner to sign the agreement
- one of you gave false information to the other partner to get them to sign the agreement
- the agreement is very unfair to one partner
For example, if there is a history of partner abuse in your relationship, you might feel forced or unfairly pressured to sign the agreement. If you're in this situation, it might be a good idea to have a lawyer talk to your partner on your behalf.
Or you can have a lawyer review your separation agreement before you sign it. This is sometimes called independent legal advice.
There are some rights that you're not allowed to give up. A parent cannot agree to "give up" receiving child support just because they don't want to deal with the other parent. Child support is a right of the child. The law says that both parents are responsible for financially supporting their dependent children.
Courts encourage people to decide their issues on their own. So if you have an agreement, a court will not set it aside easily. The court will not set aside an agreement just because one of you has changed your mind and now thinks your agreement is not fair.