Family Law “Recession” Issue – Refinancing Home

In the recent Ferguson case the parties reached a mediated settlement on August 8, 2008, in which the husband was to refinance the home and pay the wife $185K in a very short time. As we know the next month the real estate market/economy tanked. The husband refused to perform. The trial court voided the section of the settlement agreement based on the doctrine of impossibility. The appellate court reversed. The court was unsympathetic about the economic collapse of the country and held that dramatic decline in the economy and real estate market are not unanticipated circumstances that fall within the doctrine of impossibility. The husband was still bound by the terms of the agreement.

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