Fraud in the Context of a Divorce Consent Judgment

It is obvious that a divorce can be contentious. In order to minimize conflict, and when both spouses are able to agree, it is common for a divorce attorney to draft a consent judgment allocating things such as property, spousal support, child custody and child support, in addition to whatever other consent that exists between the parties. Such agreements are generally binding on the parties, as long as soon as they become an order of the court. (One should be aware that property generally is only divisible in such a manner as long as the parties have ended the community property regime through a judgment of separation, matrimonial agreement, or after divorce.)

There are a number of ways to attack such agreements that are part of or in anticipation of divorce, and one of them is if there was fraud. In August of 2011, a Louisiana appellate court found that fraud rendered a consent judgment null where the husband lured the wife into believing that an attorney who drafted a consent judgment was neutral in the litigation and was not representing either party when, in fact, that lawyer had a direct interest in the matter and had, without the wife's knowledge, already filed the paperwork with a court to get a divorce.

The appellate court recognized that fraud is an act that is calculated to produce a misleading effect. Because of the misrepresentations that one spouse made to the other with regard to the relationship that the husband had to the attorney drafting the agreement, the court was able to invalidate the consent. The court seemed to suggest that it was, in so far as invalidating a judgment, it was important for the party to have actually relied on the misrepresentation in making its decision - in other words the misrepresentation was material finding that the fraud must have "substantially influenced that consent." Moreover, it is possible to use Louisiana Civil Code article 1958 to in order to get damages and attorney's fees that result from the fraud, though it will be necessary to factually prove what those are.

Perhaps the most difficult problem with fraud is actually proving that it occurred and that the fraud was material to the spouse's consent. The standard of proof is to show a preponderance of the evidence. The good news is that having a situation where there is fraud is unusual, even in a contested divorce. But where it is seemingly most likely to come up is where there is imperfect information by one spouse, and the other spouse is aware of this but still induces the other spouse to believe that they are getting a fair deal. This could apply to a number of various types of consent judgments in a divorce situation. Because a consent agreement is essentially a contract, it can be attacked other than through fraud by showing error or duress pursuant to Louisiana Civil Code article 1948.

Will Beaumont is a lawyer in New Orleans. This article is strictly informational and not legal advice.