Divorce Litigation Guide (Part 18): Vacating a Divorce and Post-Judgement Modifications
On this website, you’ll find a series of articles created by Long Island and Nassau County Divorce Lawyer Mr. Darren M. Shapiro to assist individuals who need to learn more about family law, child custody, and divorce. Because browsing through dozens of articles can be complex, Mr. Shapiro also offers a series of guides like this one. These guides organize crucial ideas about divorce litigation and mediation, into handy bullet-points, so they’re easier to understand.
This guide on divorce litigation has a series of parts contained within it. Part 18 focuses on post judgement modifications in a divorce case, and the decisions couples might make when it comes to vacating a divorce.Enforcing and Modifying Terms
Issues often arise in divorce cases, when one party or the other is unhappy with the final judgments and orders set out by the court. As a divorce attorney, Mr. Shapiro commonly works with clients who need help modifying and enforcing agreements after a divorce judgement.
- Some issues will always be handled by the supreme court. Typically, these include the enforcements of settlements regarding property or attempts to vacate the terms of a divorce in connection to child custody, maintenance, support, and equitable distribution. There are also times when people may choose specifically to address their case in the supreme court, because this court can deal with issues as part of a single case, rather than recognising each issue as a variety of separate cases.
- Cases regarding contempt and enforcement commonly arise when a husband or wife asks the court to punish the opposing partner because they have disregarded an order. This allegation indicates that one of the parties in question violated a demand to sell property, follow the guidelines of an order of protection, or something else.
- Modifications are just one type of post-judgment divorce case that may need to be addressed for some couples. People can approach the courts and request changes to child support, custody, or equitable distribution orders. Sometimes, the language of a settlement agreement can determine when modifications can be sought.
- In most cases, the only time a court will consider modifications to child custody or parenting time orders is when there have been significant changes in circumstances since the time the original order was made. Any alternations must be deemed to be in the best interests of the children involved. Default reasons to modify child support may include income changing by 15% or more, or three or more years passing since the last order.
- Courts consider various factors when deciding if a change in circumstances is substantial enough for modifications to be necessary.
Some couples will be able to modify a divorce order by approaching the courts and asking them to change certain aspects of the judgment. This is something that generally can only happen when there has been a substantial change in circumstances (like for child support or child custody). However, modifications don’t erase the orders previously made. Some of Mr. Shapiro’s clients wonder if it is possible to vacate a divorce judgment or eliminate it as though it had never existed.
- The CPLR (civil practice laws and rules) defines the mechanisms available for parties who want to request the court to open, vacate, or relieve them from a divorce judgment’s terms. The person seeking the vacature of a judgment will be required to issue a motion to the Supreme Court, asking for them to grant the request. There are various reasons that a court may consider this – such as if the order was granted via default. The motion requires an excusable reason why the person defaulted and an allegation of a “meritorious defense” for the motion to proceed in this case. Usually, the motion would also need to be made before a specific time limit (typically 12 months).
- One party may request that the Supreme Court vacate a divorce order if they recently discovered new evidence that could not have been found on the same case with adequate due diligence previously. It’s also possible to request to vacate if the person is dealing with fraud or has discovered that the court did not have jurisdiction to submit the order.
- Anyone who wants to vacate a divorce judgement will need to ensure that they have a valid reason for this request. Mr. Shapiro has heard many excuses in the past, like people claiming that they were never served the divorce papers in the first place, but the courts will not always agree that the lack of service is a legitimate reason.
- To decide whether to allow for a judgment to be vacated, the courts must consider various factors, including how long the default was present, whether the law office has demonstrated any failures, and whether there are any clerical errors to address from the courts. Inability to appear in court or threats from another person may be reasons for a default.
If you have any questions about the issues addressed in the bullet points above, or you would like to learn more about modifying and enforcing the terms of a divorce litigation judgement, you can find further insight on this website. Mr. Darren M. Shapiro is available to discuss your own individual case, with a thirty-minute initial consultation available for free.
Please reach out via the contact form on this website or using the phone number (516) 333-6555, to discuss setting an appointment for our initial discussion.