In Missouri divorce settlements, in general when both parties sign a settlement agreement, that agreement is legally enforceable. There are a few exceptions however, and one of them is known as duress. Duress essentially means someone threatened you to sign the agreement to such an extent that you lacked free will. To void an agreement by claiming duress, one must prove that the contract was obtained by oppressing a person with threats as to deprive them of the free exercise of their will. What follows is legal example of duress in a divorce settlement involving a famous television actor.
Black’s Law Dictionary defines duress as “any unlawful threat or coercion used…to induce another to act [or not act] in a manner [they] otherwise would not [or would]. ). “The central question with respect to duress is whether, considering all surrounding circumstances, one party to the transaction was prevented from exercising his free will by threats or wrongful conduct of the other.” Costello Family Trust dated July 20, 2006 v. Dean Family Lotawana Trust Dated July 20, 2006, 551 S.W.3d 561, 572 (Mo. Ct. App. 2018). Duress can void a contract if the agreement was obtained by threats which cause the victim to lose the quality of mind essential to making a contract. Aurora Bank v. Hamlin, 609 S.W.2d 486, 488 (Mo. Ct. App. 1980). “Duress is to be tested, not by the nature of the threats, but by the state of mind induced thereby in the victim.” Id. To constitute duress, it is sufficient to show one party was prevented from exercising his free will by reason of threats made by the other. Coleman v. Crescent Insulated Wire & Cable Co. 168 S.W.2d 1060.
Many millions tuned in to view Terrence Howard play a music mogul on Empire, a television show on Fox that ran from 2015-2020. Most of those viewers probably did not realize that the actor’s personal life was a real mess at the time. Having already been divorced three times, Howard prevailed in a major legal victory with regard to the divorce from his second wife, and the basis for the victory is worth some discussion.
Howard and his second wife reached a settlement agreement in the divorce case that the trial judge accepted and therefore the settlement was incorporated into the divorce decree. The settlement agreement detailed how the parties would divide all of the marital assets and how much maintenance “alimony” Howard would have to pay his second ex-wife. One of the aspects of the agreement that benefited the former wife involved her share of his future earnings from some of his acting work, including Empire.
The settlement agreement was signed in 2012; two years later, Howard asked the court to set aside the settlement agreement for duress. Specifically, Howard claimed that his former wife threatened to expose some very embarrassing aspects of his personal life – including phone sex recordings with other women and videos of him dancing and singing naked in the bathroom – if he did not agree with her terms on the divorce settlement. The former spouse did not offer any evidence to counter the allegations of duress. Given this, the trial court agreed with Howard and set aside the settlement agreement and ordered the parties to negotiate new terms.
The ruling surprised many in the legal community. First, it is not common to wait such an extended amount of time to set aside an agreement based on duress. Second, Howard must have clearly known of the extortion attempt prior to signing, so why did he not have a confidential hearing before the judge at that time to protect himself before the issuance of the final agreement? Third, in today’s social media age, how would one or two embarrassing tapes or videos qualify as duress?
As to the two year time frame, while odd to wait so long, a judgment procured by duress may be subject to being set aside because it voids the voluntariness of the judgment. As to the actual threats creating duress, we know that the release of the tapes at the time could have harmed Howard’s acting career and even, ironically, derailed his role in Empire that would pay the former spouse so handsomely. So, while it may appear to fall short of the level of involuntary coercion that goes with duress, it does qualify because but for the threats, Howard would not have signed the
divorce settlement agreement that he did.
This case also raises a question about legal negotiating tactics. Lawyers in high asset divorces often find unsavory details about the other party that if made public could cause substantial damage. When does a promise or threat of disclosure come to the level of illegality or even criminal conduct? That question is more complicated than for the purposes of this article, but divorce parties and lawyers have been charged with extortion when the threatened harm was a criminal act and the payout sought was extreme. Some of you may remember that David Letterman was the victim of an extortion attempt related to his having an affair with a staff member on the Late Show with David Letterman. Letterman actually aided the police in making a case of extortion by wearing a wire and the police charged the extortionist. Similar behavior in a divorce settlement negotiation does not make it less illegal.
In Missouri divorce cases, separation agreements may be set aside on the basis of fraud or duress. However, the Missouri legislature has put a limit of one year on the time within which to raise the claim for duress. So, Howard would have been out of luck in Missouri had he waited the two years to file the motion to set aside the settlement. Missouri takes the view that someone who was the victim of fraud or duress must come forward expeditiously (the exception would be if the fraud or duress was not known at the time of the agreement).
It is important to be 100% certain you want to sign the settlement agreement you intend to sign. Judges in Missouri do not ofter set aside judgments and to prove duress requires substantial evidence to paint a clear picture of duress. Anyone signing a divorce settlement agreement should discuss any details of the agreement they are uncertain about with their attorney.
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