Can I Change the Settlement Terms After the Divorce Has Been Finalized?
The short answer is “maybe.”
Parties to a finalized divorce have informed the court that they really want to be held to the terms and conditions of their divorce judgment. Therefore, it is difficult but not impossible to go to the court a day, a month, or a year later and tell the court that you no longer wish to be bound by one or more of the provisions of your JOD.
If there is a provision of your JOD which needs to be revisited, your Michigan family law attorney will likely start by contacting your former spouse or their attorney. Oftentimes, if there is a good reason for a proposed JOD change, the parties can cooperatively reach an agreement, reduce it to an amendment to the JOD, and then submit that amendment to the court. Such a negotiated amendment, in most cases, would not even require the parties to reappear in court. A well-qualified Michigan family law attorney will know how to negotiate and memorialize such an amendment with the opposing party.
In order for a divorce to be finalized, two distinct actions will have taken place at the court:
- A “Pro Confessor” hearing will have been conducted in front of the judge. At the Pro Confessor hearing, the parties will have been placed under oath and then will have testified to the judge that they are asking their divorce be finalized. In most cases, the parties will also testify that they signed a Judgment of Divorce (JOD) and are asking the court to make the JOD binding on the parties.
- A final written JOD will have been signed by the parties, presented to the court, and then signed by the judge.
Unfortunately, there are situations that arise during the course of life which can necessitate an amendment to a Judgment of Divorce. If your former spouse is not agreeable to the amendment, then the only way a change can take place is to have the matter scheduled for a motion hearing before the judge. There are numerous examples of situations which require an amendment to the original Judgment of Divorce. Here is a partial list of typical motions for amendment to the JOD:
- There are three children for which child support is being paid. The oldest child has just turned 18 years old. Therefore, the amount of child support being paid will be reduced pursuant to the Michigan Child Support Formula. Believe it or not, some people will be in disagreement as to what the new child support should be. Therefore, the matter can only be decided via motion to the court.
- Child support was calculated upon the custodial parent earning $30,000/yr. and the non-custodial parent earning $85,000/yr. The divorce was finalized six years ago. The custodial parent is still making $30,000/yr. but the non-custodial parent is now making $140,000/yr. The parents cannot agree on what the new child support amount should be. Therefore, the matter can only be decided via motion to the court.
- The Judgment of Divorce states that one parent will pay all or part of the college tuition for the children. The child is now 19 and is attending college. The parent who is ordered to pay tuition is refusing to do so or is paying an amount smaller than contemplated in the Judgment of Divorce. The non-paying parent is unapproachable. Therefore, the matter can only be decided via motion to the court.
- The Judgment of Divorce requires one party to maintain life insurance to insure that there is ample coverage for child support and spousal support in the event of their death. The party receiving the benefits has been continuously asking the other party to provide proof that this vital life insurance is in place. The party that is supposed to maintain the life insurance refuses to cooperate with this simple request. Therefore, the matter can only be decided via motion to the court.
- Every Judgment of Divorce will include language that states that a minor child has the inherent right to live in peace and dignity. Evidence has surfaced that the minor child is being abused or is witnessing abuse, whether it be in the presence of the custodial or non-custodial parent. Oftentimes, such allegations don’t lend themselves to even requesting that the other parent modify their conduct. Rather, the matter can only be decided via motion to the court.
- The minor child had previously been a consistently high academic performer. Suddenly, there is a precipitous fall-off in the child’s grades. There may be new behavior problems that have arisen at school. Maybe the minor child has had contacts with law enforcement. It is alleged that the custodial parent has lost control of the minor child. Oftentimes, such allegations don’t lend themselves to even requesting that the other parent modify their conduct. Rather, the matter can only be decided via motion to the court.
- Every Judgment of Divorce, by law, has the 100-mile domicile rule pursuant to the Michigan Child Custody Act. The custodial parent is now proposing moving the minor child out of Michigan or more than 100 miles away. There has been talk between the parties but no agreement can be reached. Therefore, the matter can only be decided via a motion to the court.
Can I undo the property or financial division awards of the judgment of divorce?
In general, the division of cash, real estate, retirement assets, jewelry, etc., that have been noted in the Judgment of Divorce are final and cannot be revisited. The court will not reopen the Judgment of Divorce just because one party now believes that they struck a bad deal for themselves. However, there are limited instances under which a court will take a second look at these issues. The most common reason that a court will entertain a reopening of a Judgment of Divorce is fraud, and to a lesser extent, mutual mistake.
Fraud is a simple concept that the court will be able to quickly recognize. For instance, one party was ordered to split their retirement assets with another party, and in accordance with that provision the parties split a $100,000 401K account with each party receiving $50,000. Fourteen months after the divorce was finalized, one party learns that the other party had a second 401K account that had an additional $200,000 in it. The party with the second 401K account deceitfully withheld this information during the discovery phase of the divorce. The Judgment of Divorce (in most cases) will have included language to the effect of “I have fully disclosed to the other party all of my assets.” In this case, even though the Judgment of Divorce says that it is “final,” it is very likely that a judge would award half of the second 401K to the deceived party. In fact, it may even be possible that the judge will order the deceitful party to pay the legal expenses of the deceived party. Judges take this type of fraud very seriously.
“Mutual mistake” is another area that can allow for a reopening of a Judgment of Divorce. For instance, a Judgment of Divorce states that one party has a 401K valued at $100,000 and that they are ordered to pay the other party $50,000 in recognition of their share. Both parties have signed the Judgment of Divorce and there is no disagreement about this provision. However, when the first party goes to liquidate the $100,000 401K, they learn that the account is actually worth $120,000. This new fact is a surprise to both parties. There is no allegation that either party had engaged in a fraud. This would be considered a classic mutual mistake. However, let’s say the party with the 401K begins to think in a greedy manner. The party thinks “Well, I was ordered to pay $50,000 to the other party, so I get to keep the remaining $70,000.” Such a plan isn’t fraudulent; it's simply greedy. If brought to the attention of a judge, it is likely that the judge would rule that the parties were operating under a “mutual mistake” and would order the 401K to be split evenly as was contemplated from the beginning.
If you are considering divorce or have been served divorce papers, call me. I've helped hundreds of people protect their family and their assets and I can help you. For a FREE Consultation Call (248) 921-7164