How Can I Change A Mistaken Term in a Divorce Decree?
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Answer:
It may be possible to file a motion to set aside the judgment or file a motion to modify the judgment. The parties may not amend the judgment without it being approved by the court. A divorce decree may be modified when the parties both agree to the modification, and a stipulated amended judgment may be submitted, along with the motion to modify the divorce decree. A court may grant a motion for a modification of a divorce decree when the parties consent to the modification or when a significant change of circumstances justifies the modification Certain aspects of the decree are modifiable, while others are not. The property division is not typically modifiable by the court. It is final. Child support or custody may be modified if there is a significant change of circumstances.
Setting aside a Judgment based on mistake, inadvertence, surprise or excusable neglect is entirely discretionary with the Court. Compare this to whether the mistake, inadvertence, surprise or neglect is your attorney’s. In that situation, the Court must vacate any resulting default or default judgment, unless it finds that the default and default judgment was not in fact caused by the attorney.
If you find that the Judgment was obtained by your or your attorney’s mistake, inadvertence, surprise or neglect, you MUST file a motion for relief within a reasonable time, but not later than SIX MONTHS after the date of the judgment. If you have a Stipulated Judgment, i.e. Judgment based on agreement of the parties, the time starts to run when the Stipulated Judgment is entered and not when the stipulation is agreed to in open court.
Setting Aside a Judgment Based On Equitable Relief
A second way to set aside a Judgment is by asking the Court for equitable relief. This approach is usually taken when the six-month deadline has expired or there are exceptional circumstances such as fraud, mistake or duress, which warrant a set-aside of the Judgment. The circumstances are so egregious in this type of case that it prevented a party from participating in the dissolution proceeding and deprived him or her an opportunity to present his or her case to the Court and receive a fair trial.
To set aside a Judgment based on fraud, one would have to show that he or she was prevented from participating in a proceeding either by being kept in ignorance or by some other fraudulent manner, not because of one’s own lack of care or attention. Examples of fraud that have been upheld by the Court are when one party persuades the other party not to obtain counsel and convinces the unrepresented party to enter into an inequitable agreement, when one party deliberately conceals the existence of community property assets, when one party fails to give notice to the other party of the dissolution action, when one party fails to advise the Court of the other party’s inability to participate in the proceedings or when one party obtains a judgment against the other without the knowledge of the other party.
If the ground for setting aside a Judgment is not so much fraud or misconduct of the other party but your own excusable neglect, a Judgment may be set aside for “mistake.” Some examples of mistake upheld by the Court are reliance on an attorney who became incapacitated, mistaken belief by one party that prevented proper notice of an action, disability of a moving party at the time judgment was entered and an attorneys’ mistake in not fling an answer.
A third ground for setting aside a Judgment based on equitable relief is “duress.” Duress occurs when a party intentionally uses threats or pressure to induce action or inaction to the detriment of the coerced party. A determination that a Judgment was obtained through duress is made on a case-by-case basis, although the Court may consider factors such as age, sex, health and mental characteristics of the aggrieved party. Some examples of duress that have been upheld by the Court have been threats of physical harm, threats of taking the children away or removing them to a foreign country or threats to have the other person “exterminated” and/or killed.
Unlike the first approach, there is NO six-month deadline to file an equitable proceeding to set aside a Judgment under this approach. However, there is a requirement that the Judgment must have been entered BEFORE January 1, 1993. Failing to bring an equitable action immediately after your discovery of the fraud could justify a denial of relief. Therefore, it is extremely important that you do not delay in filing a claim.
If you have a Judgment that was entered on or AFTER January 1, 1993, one may still be able to set aside the Judgment if he or she can show that the grounds for setting aside the Judgment materially affected the original outcome and he or she would materially benefit from the relief. The grounds for setting aside the Judgment are similar to those stated above, with a few exceptions:
•Fraud. Actions based on fraud must be brought within 1 year after the aggrieved party discovered or should have discovered the fraud. Merely suspecting that fraud occurred does not qualify.
•Mistake. Actions based on mistake must be brought within 1 year after entry of judgment. Failure to disclose the existence or value of a community asset qualifies as mistake.
•Duress. Actions based on duress must be brought within 2 years after entry of Judgment.
In addition to those listed above, the aggrieved spouse may also use the following grounds to set aside a Judgment entered on or AFTER January 1, 1993.
•Perjury. If the other party lied on his preliminary or final declaration of disclosure and/or income and expense declaration, a Judgment may be set aside based on perjury. Actions based on perjury must be brought within 1 year after the aggrieved party discovered or should have discovered the perjury.
•Mental incapacity. If the aggrieved party lacked the mental capacity to enter into an agreement (usually in the case of a Stipulated Judgment), a Judgment may be set aside based on mental incapacity. Actions based on mental incapacity must be brought within 2 years after entry of judgment.
•Non-compliance with disclosure requirements. If one party fails to comply with the disclosure requirements which prejudices the other party resulting in a miscarriage of justice, a Judgment may be set aside under this ground provided it is brought 1 year after the party discovered or should have discovered the failure to comply.
