Dragging Out the Kardashians

A new kerfuffle has arisen in the divorce saga of Khloe Kardashian and Lamar Odom. Kardashian filed for divorce in December 2013. Before the courts finalized the divorce, Odom fell ill and Kardashian agreed to withdraw the divorce until he recovered.

The Inquisitr reports that while Kardashian has yet to re-file the divorce papers, there appears to be no reasonable prospect of reconciliation between the parties.

According to InTouch Weekly, Odom is now refusing to sign the settlement that the parties previously signed off on last summer, prior to the divorce being withdrawn. According to an inside source, Odom and Kardashian were only going to split one asset: the sale price of their Tarzana, California Mansion.

However, as a result of his new health troubles, Odom is rethinking the agreement he and Kardashian previously made. It sounds like he is now refusing to sign the settlement in order for the parties to jointly file for an uncontested divorce. According to the reports by the Inquisitr and InTouch Weekly, Odom may seeking a bigger slice of Khloe's pie in terms of the property settlement and may now be wanting spousal support. If he is seeking spousal support, it's possible that the agreement between the parties included a spousal support waiver. Under such a waiver, the parties would have released each other from any and all future possible spousal support obligation.

From the Inquisitr's report, it does not sound like the parties' previous agreement prior to Odom's overdose was a formal and fully executed Separation Agreement. If it is not a duly signed Separation Agreement, then that settlement would not binding on Odom of the parties were living in Ontario.

But what if the agreement between Odom and Kardashian was a fully signed Separation Agreement? If this situation occurred in Ontario, could Odom renege on the contract he made with Kardashian before the divorce was withdrawn?

In Ontario, Separation Agreements are a type of domestic contract which are governed by Part 4 of the Family Law Act (FLA).

Hypothetically, if Odom wanted his signed Separation Agreement, or just a part of it set aside, he would need to make an Application to the court under section 56(4) of the FLA. Section 56(4) permits a court to set aside a domestic contract, or a provision in it where:

  • A party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
  • A party did not understand the nature or consequences of the domestic contract; or
  • Otherwise in accordance with the law of contract.

Courts are generally reluctant to set aside contracts that parties freely enter into. As such, the factors of 56(4) set out a rather difficult test to meet. For Odom to have the Agreement set aside, he would have to satisfy the court that any of the following circumstances occurred at the time the contract was made:

  • Kardashian misrepresented the value of her assets and liabilities by not producing sufficient financial disclosure to him and then allowed Odom to sign the contract which, due to the lack of disclosure, was prejudicial against him;
  • Odom did not obtain independent legal advice during the contract negotiations and therefore did not fully understand his rights and obligations flowing from the Agreement;
  • Kardashian forced Odom to sign the contract by means of pressure or undue influence; or
  • If the contract was not in writing, properly witnessed, or signed.

If Odom can demonstrate any of the above circumstances, the court has discretion to set aside the offending provisions of the contract such that he and Kardashian may have to re-negotiate a resolution or have the court decide for them.

It should also be noted that, if there is no signed agreement, then Odom may be able to have the agreement set aside by the court under section 56(4)(c) as a Separation Agreement is not enforceable unless it is written, witnessed, and signed.

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