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What Can I Do if Something Was Overlooked in My Divorce Settlement?
Divorce is a complex undertaking, one that involves many details and documents. It is not as simple as just signing on the dotted line. There are matters of division of property, alimony, and child custody and child support that must be determined. And the reality is, it is not uncommon for one or both parties to discover that something has been overlooked in the divorce settlement.
Omissions or errors in divorce proceedings happen for a variety of reasons. Either spouse may neglect to disclose important financial information. The judge can make a mistake. Or more commonly, the terms to which both parties agree at the time no longer reflect their home, job, or financial situation months or years later.
If something is missing or incorrect in your divorce settlement, you have two primary options to make it right. This discussion explains how to appeal a judge’s decision or file a motion for a post-divorce modification in New Jersey.
Post-Divorce Modification
When you divorce, the terms of your settlement reflect your current life circumstances, including your job, income, expenses, debts, and custody arrangement.
But of course, the only constant in life is change. A remarriage, new job, health crisis, or drastic change in income can significantly impact how you live your life. It may be possible to modify your divorce settlement, if you can show there has been a major change of circumstances for either party or for your children.
The most common reasons to change a divorce settlement include the following:
Alimony. If the spouse paying alimony or the spouse receiving it has a substantial change in income or circumstances, it may be necessary to adjust the amount of alimony accordingly. In some cases, the paying spouse seeks to terminate spousal support altogether, particularly if the receiving spouse is living with a new partner or has remarried.
Child support. Modifications to child support usually occur when the parent paying support, the non-custodial parent, has a significant income change or has another child. It is unlikely that child support will be terminated, unless the child becomes emancipated, but it can be recalculated to reflect both parties’ new financial circumstances.
Division of property. If a spouse hides or undervalues certain marital assets during the divorce process, that is considered fraud. Fraud is a valid reason for changing a divorce settlement to reflect the true value of all joint property.
Child custody and visitation. Child custody and visitation are granted to fit parents who are able and willing to actively parent their children financially, emotionally, and physically. Child custody and visitation arrangements can be revised if a parent becomes unfit, or if the custodial parent attempts to move the child out of state.
This list of reasons for a post-divorce modification is simply an overview. If your concern is not listed above, contact a trusted divorce lawyer for guidance on your individual situation.
How to Modify Your Divorce Agreement
If you believe you have cause for a post-divorce modification, you can file a motion, usually in the same court where you were granted the divorce. A motion is just a written request for the change and an explanation of what why you are asking for it.
It is not enough to simply say you want to revise your divorce agreement. You need to show a major life change has occurred and provide documentation to prove the change and support your request.
Here are the specific steps to file a motion to change or enforce an order in your divorce case:
- Complete all the required forms.
- Select a motion date at least one month away in the Family Division of Superior Court where your divorce was granted.
- Make three copies of all the documents and five copies of the proposed order. Keep a copy of each for yourself in a safe place.
- Upload the documents into the Judiciary Electronic Document Submission (JEDS) system. Mail the originals to the Family Division of Superior Court where your divorce was issued.
- Pay the filing fee.
- Deliver or mail a copy of all the documents to your ex-spouse at least 24 days prior to the motion date you selected.
- Your spouse has 15 days prior to the motion date to file a certification, or a response, with the court and send you a copy.
- The motion date arrives, and the judge makes a decision based on all of the information provided. It usually happens “on the papers,” meaning no hearing is necessary, unless one or both parties request an oral argument and the judge agrees it is necessary.
- The motion is decided, and each party receives a copy of the signed order stating the decision on the initial request for a post-divorce modification.
Note: Although the process for filing a motion in New Jersey is described above, the procedures may be slightly different if you reside outside of New Jersey. Contact an experienced divorce lawyer and the family court in your county for more information.
Appealing the Court’s Decision
The other option to have your divorce settlement changed when something has been overlooked is to appeal the court’s decision.
Unlike a post-divorce modification, you only have 45 days from the time the divorce decree is filed to appeal the judge’s decision, and you can do so only if the judge made a mistake. The appellate process can be quite time consuming and costly, and appellate courts tend to review appeals with a bias in the original court’s favor.
Even if an error has occurred, it is unlikely the original divorce settlement will be dismissed or modified. Instead, it may go back to the original judge for reconsideration.
How to Prevent Mistakes in Your Divorce Settlement
Obviously, no one can predict the changes their life will take in the future. That is why the courts allow divorced individuals to request changes to their settlement after the fact. However, in the case of glaring mistakes, it is always better to catch them during mediation or before the trial court issues the divorce judgement.
Here are some tips for avoiding costly and stressful mistakes in your divorce settlement.
Put your divorce settlement in writing. Couples who have a relatively amicable breakup often make the mistake of handling things verbally. They wrongly assume a formal settlement is not necessary because they get along.
But as any experienced divorce lawyer will tell you, that harmonious relationship can change quickly. If one parent remarries, has another child, or wants to relocate with their child, the once cordial relationship can quickly become quite bitter.
Always protect you, your child, and your interests with a formal, written divorce agreement that clearly and correctly names all parties involved and outlines all the terms of the divorce. Never assume your ex-spouse will always be agreeable. Things change and people change, and you need that layer of protection.
Disclose and discover all marital assets. Most mistakes in divorce settlements involve finances. A spouse can forget to account for an account or asset, or they may undervalue it for their own benefit. However, it benefits both parties to be fully transparent when disclosing assets, debts, and liabilities. The courts do not take fraud lightly.
Hire the right lawyer. A knowledgeable divorce lawyer knows common settlement mistakes and how to avoid them at every stage of the divorce process to save their clients from additional litigation after the divorce is final.
Because there is a lot at stake, especially when it comes to custody or visitation changes, it is best to defer to a seasoned divorce lawyer to oversee the motion or appeal process, gather the appropriate documents, and ensure all deadlines are made. If you skip any of these steps or miss important deadlines, it is unlikely you will get the change you are seeking.
Somerville Divorce Lawyers at Lyons & Associates, P.C., Assist Clients with Post-Divorce Modifications
Mistakes or omissions in divorce settlements can have a big impact on your legal and financial situation. If you believe the judge made a mistake or your circumstances have changed since your divorce was final, the Somerville divorce lawyers at Lyons & Associates, P.C. can help. We will review your agreement and recommend the best course of action based on your situation. To learn more or to schedule a free consultation, call us at 908-575-9777 or contact us online. Located in Somerville and Morristown, New Jersey, we proudly serve clients in Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.