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

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]   Nevertheless, in divorce instances, it’s totally 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 vary it.

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

MDA’s are contracts.  Thus, there are contractual points arising from an MDA that might affect a partner’s potential to acquire what he bargained for in the course of the divorce.

For example, as a result 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 below the settlement.

Reformation is a authorized treatment acknowledged by Tennessee legislation to resolve contractual points.[iii] If a partner can show that he entered into the MDA by mutual mistake or fraud;[iv] or that his efficiency below 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 will not be permitted to make a brand new contract for spouses below 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 despite the fact that the trial court docket’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 position extra burdens on the spouse by making her pay to the daughter the retirement proceeds web after tax.[xiii]Nevertheless, 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 resolution was reversed.[xv]

A substitute for reformation is rescission, which is the canceling of a contract. Nevertheless recission, like reformation, shouldn’t be favored in Tennessee and is just permitted upon a exhibiting 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 ought to be vigilant in avoiding errors when negotiating their MDA. Nevertheless, if you end up considering whether or not reformation or rescission is suitable, 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 discount?

If the reply to any of these questions is, “Sure,” then reformation shouldn’t be applicable, and it is best to think about 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 assist points between the events.

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

[iv]             Metropolis of Memphis for Use & Good thing about State v. Moore, 818 S.W. second 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 idea of impossibility).

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

[vii]            21 Tenn. Prac. Contract Legislation and Observe §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. second 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 court docket ordered that if Spouse acquired 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. second 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 aspect 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.


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