Appealing the Marital Settlement Agreement

Almost as difficult as a divorce appeal is a reopening of the terms and conditions of equitable distribution of the marital estate.

Unlike alimony and child support, as discussed below, the terms of a property division are not subject to modification because of changed circumstances.

Any relief requires "proof of exceptional and compelling circumstances. Ordinarily, to establish the right to such relief, it must be shown that the enforcement of the terms equitable distribution would be unjust, oppressive, and/or inequitable."

"An application to reopen a divorce case is often presented by a showing of fraud, misconduct, or mistaken negotiations, or by show a fundamental inequity or unfairness in the divorce agreement. It must be emphasized that it is very difficult to prevail in any motion to reopen a divorce case. A person cannot simply claim a mistake or allege that the divorce agreement was unfair. There must be hard proof that the divorce agreement was based on fraud, deceit or a major mistake."

That said, "[i]t is possible to modify a property settlement when the modification does not materially alter a major term of the agreement," such as for a clarification or the correction of an omission (e.g., the failure to distribute an asset).

Former wives sometimes ask courts to reopen divorce agreements when they realize they are facing the golden years without adequate support. "[M]any ex-wives do not receive any share of their husband’s pensions. Many ex-wives fail to appreciate how valuable an asset a pension is. ... However, as time marches on, when they inevitably reach their retirement age, they frantically look for some type of retirement income for support."

Sometimes wives allege that they agreed to a marital settlement under "extreme duress," or that a husband used "undue influence" to force a wife to enter into the divorce agreement. If these allegations can be proven, courts may find that there are compelling circumstances for reopening the divorce case.

However, "[t]he strongest ground that a party can allege to set aside a divorce judgment is that it was based on fraud." Fraud usually means secretion of assets and undervaluing assets. In this case, the moving party must prepare a motion to reopen the case, and the court schedules a plenary hearing. At the hearing, witnesses testify and the court reviews financial information and original divorce documents. The court then assesses whether it is "fair and reasonable" to reopen the divorce judgment, usually based on its determination whether the husband intentionally and fraudulently concealed assets. "Strong evidence exists to justify reopening the divorce judgment if the ex-wife’s standard of living has decreased substantially since the date of the divorce."

The best way to avoid the need to open a settlement is obvious: get it right the first time before the settlement agreement is signed.



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