Appealing the Marital Settlement Agreement
Key Points
  • Child support and spousal support are often modified if there are substantial changes post-divorce. Of course this requires petitioning the court to do so, but attempting to have the court modify an existing property distribution award is extremely challenging. A simple change in circumstances typically will not warrant a court to reverse an existing property award.

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 spouses sometimes ask courts to reopen divorce agreements when they realize they are facing the golden years without adequate support. "[M]any ex-spouses do not receive any share of their spouse's pensions. Many ex-spouses 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 spouses allege that they agreed to a marital settlement under "extreme duress," or that their spouse used "undue influence" to force him or her 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 spouse intentionally and fraudulently concealed assets. "Strong evidence exists to justify reopening the divorce judgment if the ex-spouse'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.

Useful Online Tools
  • Divorce Online - With this online software you will complete and instantly print your divorce forms and step-by-step filing procedures to file your own divorce in a timely, professional, and hassle free fashion.
  • Online Separation Agreements - When you and your spouse agree about how to resolve your issues, 3StepAgreementTM puts you in charge and gets everything in writing.
  • Divorce Negotiation Online - You will be surprised how easy it is to resolve your disputes through our innovative Divorce Negotiation CenterTM. It's FREE. Give it a try.

Recent Related Blog Posts
    All Divorce (General) Blog Posts

Suggested Reading
The Complete Guide to Divorce The Complete Guide to Divorce
You Must Have this Guide to Have a Successful Divorce! This book supplies the information you'll need to evaluate the strengths and weaknesses of your situation, ultimately allowing you to make better decisions before, during and after your divorce.

Download Now

Related Article Archives
Court Procedures
General Divorce Issues
    All Article Archives

Related Categories
Contemplating Divorce
Divorce Laws
Divorce Negotiation
    All Categories
Related Forums
DIY Divorce
General Issues
    All Forums

Resources & Tools

Bookstore Promotion Discount

Start Your Divorce Online Start Your Divorce
Several Options to Get Started Today.
Divorce Tools Online Divorce Tools
Keeping it Simple to Get the Job Done.
Divorce Downloads Download Center
Instantly Download Books, Guides & Forms.
Divorce and Custody Books Discount Books
Over 100 of the Best Divorce & Custody Books.
Negotiate Online Negotiate Online
Settle your Divorce and Save.
Custody and Support Tracking Custody Scheduling
Make Sure You Document Everything.
FILING FOR DIVORCE – Divorce begins when a divorce petition or complaint is filed.
Start Divorce

Easily Connect With a Lawyer or Mediator
Have Divorce Professionals from Your Area Contact You!
Enter Your Zip Code:


Men's Book Men's Rights Manual for Divorce

Men's Rights Manual for Divorce

Men's Rights Manual for Divorce


Women's Book Women's Rights Manual for Divorce

Women's Rights Manual for Divorce

Women's Rights Manual for Divorce


Featured Download The Limits of Discovery During Divorc

The Limits of Discovery During Divorc

The Limits of Discovery During Divorc

Guarantee Official PayPal Seal Facebook Twitter Versign Secure Site