Thanks, Joe for this nice weblog publish. Reformation or rescission is at all times a difficult authorized subject. Most judges hate to reopen closed litigation information.
The complexity with this situation is one which requires a nuanced strategy.

by Joseph W. Smith, Esq.

Having second ideas about that current buy? and most of its sellers provide returns for objects inside thirty (30) days of receipt of cargo.[i]   Nonetheless, in divorce circumstances, it’s completely different.  A partner can implement a signed Marital Dissolution Settlement,[ii] (“MDA”) and maintain the opposite partner to the settlement even when the opposite partner wakes up the subsequent morning and desires to alter it.

So, if the spouses can not conform to resolve points arising from the MDA, what can they do?

MDA’s are contracts.  Thus, there are contractual points arising from an MDA that would affect a partner’s capability to acquire what he bargained for through the divorce.

As an illustration, as a consequence of mistake or fraud, a partner might wish to alter or cancel the MDA.  Or a partner would possibly wish to alter the MDA if unexpected circumstances have made it not possible for to him to carry out underneath the settlement.

Reformation is a authorized treatment acknowledged by Tennessee regulation to resolve contractual points.[iii] If a partner can show that he entered into the MDA by means of mutual mistake or fraud;[iv] or that his efficiency underneath the MDA is not possible,[v] a decide can “reform” the settlement to make it “conform to the true intentions of the events.”[vi]

However reformation has its limits.[vii] Judges should not permitted to make a brand new contract for spouses underneath the guise of reforming it or impose obligations on a partner to which he by no means agreed.[viii] Earlier this yr, the Tennessee Court docket of Appeals reversed a trial decide for reforming a MDA regardless that the trial courtroom’s order effectuated the events’ intent.[ix]

In Moore v. Moore, the events executed the MDA with the intention of every partner retaining their respective retirement advantages, however the MDA was silent as to how that was to be completed.[x] After the divorce was finalized the husband sought to change the MDA, as a result of he realized that he couldn’t take away the spouse as his retirement beneficiary.[xi] Consequently, the husband’s daughter couldn’t obtain his retirement advantages if he predeceased her.[xii]

To effectuate the events’ intent, however the husband’s “mistake” as to his personal retirement advantages, the trial decide selected to put extra burdens on the spouse by making her pay to the daughter the retirement proceeds web after tax.[xiii]Nonetheless, the Court docket of Appeals decided that the trial decide’s motion was not an applicable type of reformation, as a result of new obligations had been positioned on the spouse to which she didn’t consent.[xiv] So, the decide’s determination was reversed.[xv]

A substitute for reformation is rescission, which is the canceling of a contract. Nonetheless recission, like reformation, isn’t favored in Tennessee and is simply permitted upon a displaying of fraud or mutual mistake.[xvi] Within the context of a divorce, rescission is effectuated when the decide units apart the divorce judgment incorporating the events’ MDA and holds a divorce listening to anew.[xvii] Had the husband sought rescission as an alternative of reformation, the decide may have issued an order to make sure that the daughter receives his retirement advantages.

So, it goes with out saying that spouses must be vigilant in avoiding errors when negotiating their MDA. Nonetheless, if you end up considering whether or not reformation or rescission is acceptable, then ask your self the next questions:

  1. Are you making a brand new MDA or imposing new obligations to the present one?
  2. Are you bringing the MDA into conformance with an intent arising after its formation?
  3. Are you making a extra affordable cut price?

If the reply to any of these questions is, “Sure,” then reformation isn’t applicable, and it’s best to contemplate rescission. If the reply to all of them is, “No,” then reformation stands out as the applicable treatment.


[i]               About Our Returns Insurance policies. (2011). Retrieved October 26, 2020,

[ii]              A Marital Dissolution Settlement is a contract between two spouses that terminates the wedding and settles all or among the property, custody, and help points between the events.

[iii]             Sikora v. Vanderploeg, 212 S.W. 3d 277, 287 (Tenn. Ct. App. 2006).

[iv]             Metropolis of Memphis for Use & Advantage of State v. Moore, 818 S.W. 2nd 13, 16 (Tenn. Ct. App. 1991) (holding that mutual mistake or fraud is required to kind a foundation for reformation).

[v]              Turner v. Turner, No. 2015-01165-COA-R3-CV (Aug. 11, 2016) (holding {that a} property settlement settlement could also be reformed on the premise of impossibility).

[vi]             Sikora, at 287.(quoting Lebo v. Inexperienced, 426 S.W. 2nd 489, 494 (1968)).

[vii]            21 Tenn. Prac. Contract Regulation and Follow §6:64.

[viii]           Ament v. Wynne, No. M2005-01876-COA-R3-cv (Tenn. Ct. App. Aug. 20, 2007) (citing Rogers v. First Tenn. Nationwide Financial institution Affiliation, 738 S.W. 2nd 635 (Tenn. Ct. App. 1987).

[ix]             Moore v. Moore, No. E2019-00503-COA-R3-CV (Could. 15, 2020).

[x]              Id. at 6.

[xi]             Id.

[xii]            Id.

[xiii]           Id. at 3. The trial courtroom ordered that if Spouse obtained her share of Husband’s retirement, she would pay the online quantity after her taxes for that revenue to Husband’s daughter. Id

[xiv]            Id. at 13.

[xv]             Id.

[xvi]            Pugh’s Garden Panorama Co. v. Jaycon Dev. Corp., 320 S.W. 2nd 252, 261 (Tenn. 2010); However see, Heaton v. Heaton, No. E2013-01985-COA-R3-CV (Aug. 29, 2014) (citing Hearne v. Marine Ins. Co., 87 U.S. 488, 491 (1874) (holding that “a mistake on one facet could also be a floor for rescinding, however not for reforming, a contract”)).

[xvii]           Moore, at 8.


To study extra about divorce process, see The Tennessee Divorce Process: How Divorces Work Start to Finish.


Please enter your comment!
Please enter your name here