Modify Divorce DecreeWhen the terms of your divorce are unjust, or circumstances have changed, you can petition to appeal or modify your divorce decree. If you want your divorce decree overturned, you will need to file an appeal. This is usually a drawn-out process, because you are asking an appellate court to overturn a lower court's decision. Generally, an appeal won't be considered unless there are exceptional and compelling circumstances, such as rulings that don't comply with the statutes, if there is a fundamental inequity in decree, or if it can be shown that fraud or misconduct has occurred. You can also petition to modify your divorce decree if the circumstances have changed. For example, child support or periodic alimony may be adjusted, child custody may be modified, or visitation schedules can be changed. If you want to have your divorce decree modified, you will need to consult with an attorney to find out what your options are. The following input from the legal expert may also give you some insight to your own situation.
Do we have to go to court to modify our divorce agreement? Rocio's Question: I need a review of the alimony and child support that I am currently receiving because it does not match the final decree. My ex is very intimidating and abusive, and he said we can modify the agreement between us with a notary. Should I trust him? Brette's Answer: To modify your settlement, you need to go back to court. Anything else is not enforceable. You can create another settlement and have it approved by the court. » Return to top Where can I get a modification form to change my divorce? Teresa's Question: Where can I get a modification form to change my divorce? Brette's Answer: It depends on what you want to modify. If you want to make changes to custody or child support, that case would normally be heard in your state family court. In some cases the trial court includes a provision saying that it retains jurisdiction over all matters - if that's the case, then you need to go back to that trial court. If you're looking for a change to the division of assets, you need to go back to the trial court. If you're not sure where to go, call your local family court and ask them. » Return to top Is there a statute of limitations to appeal a divorce? Robin's Question: I received the final judgment over a year ago, and the settlement wasn't fair. Is there a statute of limitations on how long I can have the judgment reviewed? Brette's Answer: Usually there is a very short period of time in which to file your intent to appeal a decision. You should consult an attorney. Can a divorce be modified if the wife received nothing? Erica's Question: My husband's grandmother got divorced about 3 or 4 years ago. She is about 80 years old, and did not take anything except for a suitcase of clothes with she got divorced. She did not know that she could get part of their property until she talked to me. She was married to her former husband for about 30 years. Is she still be able to receive half of what they owned while they were married even though time has passed? Brette's Answer: If she consented to the divorce or did not contest it, then she already had her chance to do that and it has passed. She should talk to an attorney though to find out if everything was done correctly and legally. Good luck. » Return to top How can I contest a modification of our divorce agreement? Virginia's Question: My ex filed to have our divorce decree modified. If I do not agree to the new terms, how do I fight it? Brette's Answer: You either retain an attorney who will handle it for you or you go to the court date and make your position known. You may also be able to file a response, however you will need some legal help to know what paper to file and how to word it. » Return to top Can a divorce be modified if the settlement was unfair? Doreen's Question: I divorced my husband five years ago after a 20 year abusive marriage. I receive $800 a month in alimony, but there is a clause that I will lose it if I get a job that pays more than $800 per month. Also, the child support I get no longer provides for my son's needs. My friends have read my divorce decree and tell me that I should have received a lot more. Is there anything I can do after 5 years divorce? Brette's Answer: My experience is most people walk away from a divorce feeling as if they got the short end of the stick. No one ever comes out a winner in this situation. If there has been a change in circumstances (a worse situation for you or a better one for him), you can seek increased child support. Alimony can be increased with a change in circumstances as well. You should talk to a different lawyer if you want to get information about pursuing this. » Return to top Can I appeal the settlement if I signed under duress? Nancy's Question: Can a property settlement be changed if it has been over 2 years since the divorce. I agreed to pay half of the house payment and half of the utility bills until the house was sold. I left because I did not want to stay in that town. There was a lot of duress and pressure on me, so I just signed to get out of there. My ex still lives in the home, and I do not think I should pay his utility bills. Can I appeal the settlement. Brette's Answer: It is likely too late to appeal and an appeal would not solve your problem most likely since the appellate court only considers whether the trial court followed the law. You should schedule a consultation with an attorney who can review your case and tell you if you have any chance of having the settlement modified. » Return to top What can I do if I felt pressured to sign the agreement? Sherryl's Question: My attorney didn't notify me about the court date until two days before, and it was obvious that she wasn't prepared for it. She didn't call for any witnesses to the mental abuse I had suffered, although several people including a therapist, had sent in affidavits and said they were willing to testify. After literally all day of negotiating, I agreed to a settlement that I was not ok with under much duress. On top of this, my attorney set it in stone by questioning me ON THE RECORD to say I was in the right frame of mind to agree to the terms set forth. I wanted to scream NO! but I agreed. Is there anything I can do about this now? Brette's Answer: If you agreed to it, there isn't much you can do now. I hear this kind of thing a lot. To others reading this, I would urge that you not agree to anything unless you are sure. Don't let your attorney talk you into it. It's hard to stand up for yourself, but you have to because no one else is going to do so. I think it is also very common to agree to something, think it is the right decision and then regret it later. You can spend all your life second guessing yourself, or you can try to move forward and make the most of what you have. It is always possible to go back and modify a custody order in the future if it is not working, so keep that in mind. » Return to top Topic: The divorce was granted and I was never notified. Pam's Question: What can be done if your husband divorces you, and you did not know anything about it? Brette's Answer: It depends on how it happened. If your husband told the court you were personally served and you weren't, you have recourse - ask that the judgment be overturned and the case reopened. However, if your husband could not locate you and the court permitted publication of notice, there isn't much you can do. » Return to top Can he contest the divorce if he never responded to the petition? Lisa's Question: When I left my husband and moved in with my mom, I talked with a lawyer about how to proceed with a divorce. He told me that I needed to be a resident of the state for 60 days before I could file. After I met the residency requirement, I filed for a divorce and had my husband served by a process server. He never responded to the papers, so the divorce was granted by default. Now my ex has retained an attorney and is trying to contest the divorce. Am I divorced or not, and what can he do now? Brette's Answer: You're divorced. If he overturns it, then you would have to start over. It sounds like it went by the book though based on what you said. You should have an attorney represent you. Topic: The divorce was finalized before I could contest it. Marie's Question: My husband went to another state, lived there 6 months, and then filled for a divorce. On the papers he lied more than once, concerning where we were married and where we lived. He also lied and said he did not know were I was and did not have any contact with me. So when I informed his attorney of this and told him that I would not sign the papers because it could be falsifying information, they went behind my back and had the divorce finalized. I lost custody of my children and he is using them as a pawn against me. Is there anything I can do to get my children back and make my divorce real? Brette's Answer: You need to speak to an attorney in your area. Take copies of all the papers and a list of everything that is false in them. You need someone to sit down and carefully read everything and tell you what your options are. Ask for a free consultation first so that you can find an attorney you are comfortable with. If you aren't sure who to go see, contact your local bar association and ask for a referral to a matrimonial attorney.» Return to top Topic: Appealing after non-appearance. Jodi's Question: My ex had a modification to parental visitation sent to me at an address that doesn't take mail. By the time the mail delivery got figured out, I received the notification while moving to a new house. Unfortunately, the papers were were misplaced during the move and not found until after the deadline for contesting the modification. It got filed by default. Is there anything that I can do to get the visitation agreement set back to something more reasonable? Brette's Answer: You can file for a modification and present your side of the story. I don't think you have much hope of overturning the judgment since you were served - misplacing it is not an excuse the court will be interested in. Topic: Appealing an order to pay attorney fees. Maria's Question: I am ordered by the court to pay his attorney's fee. Can I appeal on that? Brette's Answer: You can appeal any ruling. You need to follow the proper procedures for filing the appeal though, and it is a good idea to have an attorney handle this for you. You may have only a short period of time in which to file papers indicating you wish to appeal, so don't wait. Good luck. » Return to top Topic: Unreported earnings at time of divorce Beverly's Question: I divorced 11 years ago for irreconcilable differences. I just found out that there was a significant amount of money he had (money that was earned during the marriage) that was never disclosed at the time of the divorce. Do I have any recourse after all these years? Brette's Answer: Talk to an attorney in your state. At the time of the divorce, both parties have to submit financial information that is sworn to be true. If he was not truthful, an attorney can help you proceed. Good luck. » Return to top Topic: Changing old divorce property settlements Maggie's Question: My husband was previously married for several years, with one child from the marriage. He is considering retiring, but recently learned that he agreed in his previous divorce that his ex-wife would receive all the survivor benefits from his retirement plan. This would leave me with nothing if he died, and his health is not the best. Can their property settlement be revised or is it too late? The divorce was ten years ago. Brette's Answer: It's too late, unless he didn't actually agree to this. Not reading the property settlement agreement wouldn't be a good enough excuse. Generally, once a divorce is finalized, you cannot go back and change the terms of the financial settlement unless there was fraud or one of the parties was not fully informed. If you have concerns, you could ask an attorney to read the document and court order. Good luck. » Return to top Topic: Can the alimony and retirement ruling be revised? Anne's Question: In my divorce decree I had forfeited all rights to my ex spouses military retirement and alimony so that I may keep custody of my daughter the divorce was in 1996. Can the ruling of his retirement and alimony be changed? Brette's Answer: It is unlikely. Talk to an attorney who can review the entire case. Good luck. » Return to top Topic: Can my ex reopen the case if retirement wasn't addressed? Sandra Lee's Question: My divorce was finalized almost 10 years ago, and now my ex has done a ex parte to reopen case to receive payment for an IRA. Can he do that? If so, can I respond and request alimony and part of his pension that I did not receive? He is only doing this because I requested a modification in child support. Brette's Answer: Yes, he can do that, and yes you can ask to have changes made as well. It's unlikely you'll get alimony since the marriage ended so long ago, but you can ask for part of the pension, as well as Social Security. Get a lawyer, who can advise you how to best come out of this situation.
Related Articles: Brette Sember is a former family and matrimonial attorney and mediator, nationally recognized expert, and author of many books including The Divorce Organizer & Planner, No-Fight Divorce, and How To Parent With Your Ex. This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce Process / Children and Divorce/ Emotions and Divorce Home / Divorce Guide / State Resources
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