Modifying Property Division

It is very hard to get out of a property division arrangement to which both parties have agreed or a court has ordered.  Understandably, courts prefer set arrangements and do not want parties to repeatedly return to litigation and past disputes.

In most states, there is an established period of time after a court enters its decision on property division during which one of the parties can request that the court to reconsider its decision. This is called a “motion to reconsider” or a “motion to vacate the judgment.” This time period varies from state to state, but is usually around thirty days.

In most cases, courts deny requests to reconsider.  However, reasons that may serve as the basis for a reconsideration include 1) that the court has made a mistake in understanding the facts or applying the law, 2) that some new facts have arisen (though this is often problematic, as there also needs to be some good reason these facts were not discovered earlier), 3) that fraud has occurred (that is, one party deliberately deceived the other), or 4) that there has been undue duress, which is when one party is forced into an agreement by unfair pressure from the other party.  The time period allowed for reconsideration due to fraud and duress is usually longer than that allowed because of mistakes or new facts.  Again, it varies from state to state, but it is usually around a year.

Another way to seek relief is to appeal to a higher court. Usually, the first appeal is to the state's appellate court, although if the case has been decided in a small state or if the case involves an issue of substantial public importance, an appeal directly to the state's supreme court may be a possibility.

Appeals, however, are expensive and often costing as much as the trial. Furthermore, if you wish to appeal, the decision must be made promptly, often within thirty days of the decision. Waiting beyond this period will probably result in the loss of the right to appeal.  The notice of appeal is a document that lets the trial court, the appellate court, and the opposing party know that an appeal will be taken.

Appeals are more likely to be unsuccessful than successful, though the likelihood of success obviously depends on the facts of the case. Before taking an appeal, a party may wish to seek an outside opinion from an attorney who has not been connected with the case regarding the likelihood of success of the appeal. Sometimes the attorney who handled the trial has been so close to the case that he or she cannot be fully objective about the merits of an appeal.