People are sometimes unhappy with the outcome of their divorce and wonder whether they can “reopen” their divorce case to change child support, alimony, or the basic distribution of the marital assets. The answer will depend on the types of changes you’d like to make and whether you can show compelling reasons that justify reopening your case.
It’s important to understand that even if your divorce was accomplished by settling with your ex-spouse—you hashed out all of the issues between the two of you, and didn’t end up in court, asking a judge to make those decisions for you—you must still go to court if you want to change the outcome. That’s because although your settlement discussions and decisions were made outside of court, you had to take that settlement plan (also referred to as a property settlement agreement or a divorce agreement) to a judge to approve it and issue a final judgment of divorce. Your agreement probably addressed issues such as dividing assets and debts, alimony, child support, child custody, and visitation. On the other hand, you and your ex may not have been able to agree on a particular issue (or any of them). You needed court intervention involving a trial, where you presented evidence in support of your claim(s.) After the evidence was submitted, the judge decided all of the outstanding issues in your case, and entered a final judgment of divorce.
No matter which course your divorce took, if you want to change the outcome, you need to head for court.
People who seek to modify the outcomes of their divorce cases typically ask the court to revisit one or both of the following:
Support orders. A support order is issued by a judge after trial or a settlement agreement. It specifies the amount and duration of child support and alimony. If one spouse experiences a change of circumstances (for example, the paying spouse loses his or her job), that spouse may need to change the amount of child support or alimony specified in the original support order. That spouse can file an application (motion) to change the amount of child support or alimony payments. This request does not amount to reopening the entire case.
To learn more about changing a support order, see New Jersey Rule of Court 5:5-4.
Substantially changing the property division or revoking the judgment. If you want to make substantial changes to your divorce agreement, such as dividing assets that were not included in the original agreement, or completely revoke your settlement agreement or divorce judgment, you’ll have to ask the court to reopen your divorce case. This procedure can be quite complicated. In New Jersey, you need to present evidence of one of the following situations in order to persuade a judge to reopen your case:
See New Jersey Rule of Court 4:50-1 for a complete list of these grounds. The sections below address common questions about when and how you can reopen your divorce case.
At the end of a divorce, particularly a quarrelsome one, many people feel like they “received a bad deal.” The truth is no one really wins in divorce. Divorce can be very traumatic, and it may take a long time to heal from it. In addition, you may have a hard time adjusting to some aspects of life after divorce such as owning fewer assets, dividing income, and living with your children part-time. These are bitter pills for anyone to swallow, and naturally, you may feel like you’ve “lost.” However, simply feeling upset that you didn’t walk away with everything you wanted will not be enough to convince a court to reopen your case.
As the moving party (person asking to have the case reopened) you’ll have a heavy burden in convincing a court there are solid reasons to justify spending the substantial amount of court time it will take to reopen and rehear your case. On the other hand, although family courts tend to uphold divorce agreements, they’re also aware that these agreements must be fair and equitable. So, a judge may be persuaded to reopen a case if you’ve shown compelling grounds and sufficient evidence.
The strongest ground you can allege to reopen your divorce case is that the agreement or judgment was based on your spouse’s fraud, misrepresentation, or other misconduct. Examples include:
Unfortunately, it’s not uncommon for spouses to hide assets during a divorce. If you discover that your spouse engaged in any of the above or similar conduct, you should contact an attorney right away to discuss your rights. If you can prove that your spouse hid or intentionally undervalued assets during the divorce, you may have strong grounds to reopen your case. If you’re successful in proving your case, the court may also order your spouse to pay for a portion of the attorney’s fees and costs you incurred in bringing the matter to court.
Many times, spouses treat each other poorly during a divorce. Snarky emails and rude voicemails can by very annoying, but are fairly common. However, in certain extreme situations, a spouse might use intense pressure, or even force, to get their spouse to agree to unfair terms.
Duress, or coercion, is the use of threats of violence, physical violence, or some other illegal act to force someone to agree to something they would not otherwise agree to. Undue influence is the act of convincing a person to enter into an agreement by moral or mental threat (for instance, saying that if you don’t agree to my terms, I’ll take the children away and you’ll never see them again.) When one spouse is under this type of pressure, they’re likely to agree to anything. If you can show that your spouse used coercion or undue influence in your divorce, you may have compelling circumstances that warrant reopening your case and invalidating your entire settlement agreement.
Some divorcing couples fail to include pension plan(s) in their settlement agreement which can cause significant confusion, especially when it comes time to retire. This could form the basis for reopening your case. However, you’ll need to be prepared to answer many questions the court will likely have. Was the pension intentionally left out of the settlement agreement? Did one of the spouses make a mistake by failing to include the pension? Did one of the lawyers overlook the distribution of the pension? Did one of the spouses give up their share of the pension in return for other marital asset(s)? In many cases, the only way to answer these questions is to hold a hearing before a judge.
You can file a motion with the court to reopen your divorce case and request that the court divide the pension. It’s impossible to predict what the outcome will be. Some judges may view the original settlement agreement strictly and be unwilling to change its terms. Other judges may be more concerned with whether the agreement was fair and reasonable. Remember, under Rule 4:50-1, a court may reopen a case based on “any other reason justifying relief.” If, for example, one spouse ended up receiving very few assets and little or no retirement funds, while the other spouse received most of the assets including retirement accounts, this may be reason enough to justify taking a second look.
As the moving party, you’ll have to prepare documents to file with your local family law court (a motion and legal brief setting forth your argument). The success or failure of this type of motion is largely determined by the quality of the legal paperwork. Because this procedure is complicated, the legal arguments and factual analysis may be difficult to complete - even for a skilled attorney. If you believe there are strong grounds for reopening your divorce case, you should contact an attorney right away to gain some professional insight into the strength of your case and what your next steps should be in moving forward.
Don’t delay filing your motion. Generally, you must bring your motion within a “reasonable” time - meaning as soon as practicable after you discover there’s a problem with the original agreement or judgment. However, you must file your motion within one year from the date of your divorce judgment if you’re claiming any of the following grounds:
If the court believes you have compelling reasons to reopen your case, it will schedule a plenary (full) hearing. At the plenary hearing, witnesses may testify and you (or your attorney) will have the right to present evidence, cross-examine witnesses, and make oral arguments. The court will review both sides’ financial information and the original divorce documents. A plenary hearing can take anywhere from one hour to several days. At the end of the hearing, the court will decide whether you have shown sufficient grounds to reopen the case.
Remember, you can always settle these issues with your ex-spouse before going through the trouble of a full hearing. Because the courts are swamped with cases, they encourage parties to settle out of court. And you can avoid the cost of a hearing by heeding the information you gain at the in-person conference that the judge holds with the lawyers, before the hearing. At these conferences the court will explain its preliminary view of the case—how it will rule—based on the motion papers. In most cases, the court’s preliminary view is likely to remain unchanged after a hearing. You can save yourself thousands of dollars in legal fees if you and your ex-spouse accept the court’s preliminary view, and find a way to resolve your dispute.