What happens when months after your divorce, you find out an error was made in your settlement — a big one — because of information your former spouse failed to disclose? Here are some of the factors that could lead the courts to grant you a divorce “do-over.”
For an overview of the process, let’s take a look at Sarah’s unexpected discovery when taking care of some post-divorce paperwork.
The final divorce papers were signed and Sarah was eager to move forward with her life post-divorce. In the settlement, she and former spouse James agreed that she would get the vacation home in South Carolina. Sarah began the routine task of transferring the property to her name only — but then made an unfortunate discovery: James had incurred a massive debt that had resulted in a lien against the property that she had no idea existed.
Sarah wants to know…now what?
Sarah is understandably very upset and does not want to be responsible this debt that James racked up paying for gambling debts he put on credit cards — that he then never paid. Because of the lien, if Sarah tries to sell the property, the debt of nearly $150,000 will be paid to the credit card companies as part of the sale proceeds. She is at her wit’s end and does not know what to do.
Should she confront James? Does she need to go back to court?
Is her divorce settlement even valid if this huge error went undetected?
Both Sarah and James had attorneys in the divorce and she believed that she was protected. Her attorney — a family friend — seemed like he was thorough and requested all information about the couples finances during the process. Her attorney even asked to depose James because of some uncertainty about his business income. At no time did James ever mention this gambling debt or that the credit card companies were coming after the vacation home. Sarah firmly believes that he hid this purposefully from her in an attempt to walk away from the responsibility of paying his gambling debts.
Can You Get a Divorce “Do-Over”?
Sarah may have a good case to go back into her divorce and reopen the final judgment of divorce. It can be very stressful when you realize that your divorce contains a mistake and you must ask a judge to reexamine your divorce. But, if a fraud was committed by James lying to Sarah, this may be exactly what happens needs to happen. New Jersey court rule 4:50-1 allows courts to change a divorce settlement for a variety of reasons. Reasons most relevant to Sarah include:
Discovering new evidence: If you weren’t aware of information during your divorce and you just learned about post-divorce, such as Sarah learning of the lien, you can ask the court to reopen your divorce case and take into account this new information.
You’ve learned of fraud or other misconduct by your ex: If James did purposefully keep this information from Sarah and her attorney during the divorce, she could argue that her divorce needs to be reexamined by the court because this fraud made her act a certain way during asset division negotiations. It is without question that Sarah would not have accepted the vacation home with the debt and that fact would certainly have affected the outcome of their divorce. Perhaps James would have had to satisfy the debt. Or, Sarah may have accepted a different piece of marital property.
The case involved a mistake or excusable neglect: Let’s give James the benefit of the doubt. Perhaps he really did not recall the lien on the North Carolina property. Perhaps at the time of the divorce negotiations and settlement, the lien hadn’t attached yet and he simply forgot this was a possibility. Maybe James told his attorney, but his attorney did not relay the information. Any of these scenarios is still a reason for a court to consider going back into the divorce and allowing the parties to rework their settlement.
Sometimes, reopening a divorce means that a divorce trial may have to happen. If the settlement is not workable, the parties may come to an impasse. In that situation, the judge will have to hear both sides of the issue and make a decision regarding some or all of the issues of the divorce. If you can, attempt to again work out your issues. It will certainly save you time and money.
Above all, if you discover that you have been misled or tricked into a settlement agreement with your ex-spouse, talk to your divorce attorney immediately. Bring to them the newly discovered evidence and detail all that you have learned since the divorce. Your attorney will be able to guide you appropriately and will be able to represent you in a motion to reopen your divorce if it comes to that. Your attorney may also suggest asking for sanctions against your spouse, especially if her or she willfully misrepresented facts to you, your attorney and the judge.
If you wish, you may want to consult with another family law attorney for “fresh eyes” on your matter and a review of your claim.
Do you think a mistake or error was made in your divorce that has resulted in an unfair settlement? If you have further questions about your divorce settlement or any other family law issue, contact us today to schedule a free and confidential consultation with one of our highly skilled attorneys. We can look over your settlement, listen to what’s happened, and give you an overview of your rights and options. Call us today at 888-888-0919 or click the button below.