How Often Do You See Requests For A Post-Decree Action After A Divorce?
It is common to see applications to modify either the child custody provisions or the support provisions of a divorce judgment. It is common to see appeals of a property distribution of the divorce judgment.
With respect to the property distribution provisions of a judgment of divorce, modification by the trial court of these provisions is infrequent. CPLR 5015 permits a court to relieve a party from a judgment or order on the basis of, among other things, “fraud, misrepresentation, or other misconduct of an adverse party” (CPLR 5015[a] ). “Courts are not limited to vacating a judgment [or order] pursuant to the enumerated grounds set forth in CPLR 5015 …, as they retain an inherent discretionary power to vacate their own judgments [or orders] for sufficient reason and in the interests of substantial justice.” (Carlson v. Dorsey, 161 A.D.3d 1317 [3rd Dept. 2018]).
Courts can also set aside a judgment to which the parties stipulated if it is unconscionable. An unconscionable agreement is not “one such as no [person] in his [or her] senses and not under delusion would make on the one hand, and as no honest and fair [person] would accept on the other” (Christian v. Christian, 42 N.Y.2d 63, 71 ).
What Are Reasons That Someone Might Seek An Action For After A Decree Has Been Finalized?
One might seek to modify the custody provisions of an order where one can prove “first, that there has been a change in circumstances since the prior order and, then, if such a change occurred, that the best interests of the child would be served by a modification of that order.” (David ZZ v. Suzanne A., 152 A.D.3d 880 [3rd Dept. 2017] quoting (Matter of Smith v. McMiller, 149 AD3d 1186, 1187 [3rd Dept. 2017]).
One might seek to modify the support provisions of an order. Unless the parties opt out, after 2010, the passage of time allows for a modification of a child support order. (Domestic Relations Law § 236 [B][b][ii][A]; see L 2010, ch 182, § 7).
One can modify a spousal support obligation based upon extreme hardship. (McKelvey v. McKelvey, 127 A.D.3d 1308 [3rd Dept. 2015]).
Often times the judgment provides for maintenance until the recipient spouse cohabits with another adult in a romantic relationship. When that occurs, the payor ex-spouse will often seek to modify the degree by ending the maintenance obligation. (See, Perez v. Perez-Brache, 148 A.D.3d 1647 [4th Dept. 2017]).
In one recent case, the appellate court modified the judgment to grant the husband an additional 90 to secure financing to buy the wife’s interest in the residence. (Palumbo v. Palumbo, 134 A.D.3d 1423 [4th Dept. 2015]).
In another case, the court modified the judgment to give the non-titled spouse a share in the titled spouse’s pension after the pension fund changed names. (Spearing v. Spearing, 127 A.D.3d 571 [1st Dept. 2015]).
But the general rule to modify a division of assets and liabilities is “[a] party seeking to modify a separation agreement that is incorporated but not merged into a judgment of divorce must demonstrate that the agreement was not fair and equitable when entered into or that an unanticipated and unreasonable change in circumstances has occurred; such unforeseen circumstances must result in extreme financial hardship in order to warrant a modification of the incorporated agreement”
When And Why Would Division Of Assets, Property Or Debt Decree Be Modified?
Obviously, an appellate court could modify the division if it disagreed with the trial court’s distribution. But as stated above, trial court rarely modify their own judgment that divides assets and liabilities.
One example when a court might modify its judgment of divorce would be to correct a mathematical error. (See German v. German, 158 A.D.3d 1262 [4th Dept. 2018]).
If a spouse could show that the other spouse secured the judgment through fraud, misrepresentation, or other misconduct, CPLR 5015 would allow for a modification.
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