Divorce Agreement Signed Under Duress

Duress is the act or threat of wrongful conduct that leaves the victim with no reasonable alternative
  • What constitutes duress in the context of signing a divorce agreement?

In an unpublished decision, Coburn v. Rhodig, the court of appeals reviews the elements of duress as it relates to an agreement to modify non-modifiable spousal maintenance. 1 CA-CV 18-0194 FC, 2019 WL 1530298 (App. Apr. 9, 2019) (mem.).

Facts and Procedural History

The husband in Coburn was unable to make his spousal maintenance payments. He threatened to leave the state and commit suicide if the wife did not agree to his proposal to reduce his spousal maintenance obligation. He also threatened that the wife would not receive any support payments if she filed for enforcement.


To constitute duress, an act or threat must be wrongful and preclude a party from exercising his or her free will and judgment. See Dunbar v. Dunbar, 102 Ariz. 352, 355-56 (1967); USLife Title Co. of Ariz. v. Gutkin, 152 Ariz. 349, 357 (App. 1986). This definition is based on the Restatement of Contracts § 492 (1932). The Restatement (Second) of Contracts § 175 (1981) updated this definition due to its “vagueness and impracticability,” providing that a contract is voidable if a party’s “assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative.” See Restatement (Second) of Contracts § 175 cmt. b and § 175(1).

“[D]uress does not exist merely because one party takes advantage of the financial difficulty of the other,” but the court may find duress where one party contributed to or caused the financial difficulty of the other. Inter-Tel, 195 Ariz. at 117-18, ¶¶ 37-40. The conduct that caused the financial distress must have been improper or unfair. See USLife Title Co., 152 Ariz. at 357 (“Unless wrongful, unlawful or unconscionable pressure is applied there is no business compulsion amounting to duress….”) (quoting Frank Culver Elec., Inc. v. Jorgenson, 136 Ariz. 76, 78 (App. 1983)). This is consistent with Restatement (Second) of Contracts § 176(2)(b), which provides, “A threat is improper if the resulting exchange is not on fair terms, and … the effectiveness of the threat in inducing the manifestations of assent is significantly increased by prior unfair dealing by the party making the threat.”

Wrongful threat
  • Financial distress caused by other spouse’s legitimate inability to pay support is NOT duress, because it’s not wrongful—there’s no improper motive.
  • A threat to commit suicide IS duress because, while not a crime, suicide is a wrongful threat of physical violence. See Restatement (Second) of Contracts § 176(1)(a) and cmt. b (stating threat of physical violence need not be directed at the recipient of the threat or his relative “if the threat in fact induces the recipient to manifest his assent”).
  • A threat to ensure the wife would not receive any support payments if she went to court was improper because it violated husband’s court-ordered obligation to pay support. Such threats constitute highly “manipulative conduct during the bargaining stage” and are, therefore, improper. See Restatement (Second) of Contracts § 176 cmt. f.
Lack of reasonable alternative
  • Asserting one’s rights in court is generally a reasonable alternative. See generally, Republic Nat’l Life Ins. Co., 137 Ariz. at 65. “This alternative may not, however, be reasonable if the threat involves, for instance … the use of oppressive tactics, or the possibility of emotional consequences.” Restatement (Second) of Contracts § 175 cmt. b. “The standard is a practical one under which account must be taken of the exigencies in which victim finds himself….” Id.