Divorce FAQ's
1. I was really screwed in my divorce case. Can I file any type of application with the court to reopen my case?
Unlike alimony and child support obligations, the terms of equitable distribution are not subject to any modification because of a change of circumstances. Generally speaking, an equitable distribution award is not subject to any reduction based on changed circumstances, as an alimony award can may be. The modification of equitable distribution is governed by R. 4:50-1(f). Any relief from a divorce judgment pursuant to R. 4:50-1(f) requires providing proof of exceptional and compelling circumstances. Ordinarily, to establish the right to such relief, it must be proven that the enforcement of the terms of equitable distribution would be unjust, oppressive and/or inequitable.
An application to reopen a divorce case is often presented by a showing of fraud, misconduct, or mistaken negotiations, or by showing a fundamental inequity or unfairness in the divorce agreement. It must be emphasized that it is very difficult to prevail on any motion to reopen a divorce case. A person simply cannot claim a simple mistake or allege that the divorce agreement was unfair. There must be hard proof that the divorce agreement was based on fraud, deceit, or on a major mistake.
An applicant has a heavy burden to convince a court to reopen a divorce case. The family courts have a predisposition to enforce any divorce agreement. However, there is the countervailing doctrine that all divorce agreements must be just and equitable.
It is important to emphasize that an aggrieved ex-wife must have strong grounds to reopen a divorce case. An ex-wife can’t reopen a divorce case merely because she believes it was unfair. Life is unfair! There must be strong grounds to justify spending thousands of dollars to prepare the volumes of legal paperwork to reopen up a case.
2. What are some of the scenarios wherein a property settlement agreement can be modified?
It is possible to modify a property settlement agreement when the modification does not materially alter a major term(s) of the agreement. In many cases, the lawyers and the parties simply do not cover every aspect of the divorce. The cases are rushed. Moreover, many parties simply do not think as clearly during the divorce process. Consequently, many important details are missed or overlooked. A person can file a motion to reopen the divorce case to modify and supplement the terms of the property settlement agreement.
It is also possible for a person to reopen a divorce case to request a clarification of some of the terms in the property settlement agreement. Many property settlement agreements are poorly drafted, and are very confusing to interpret. After a divorce, many couples are very bitter, and it is often impossible for them to reach any type of agreement on any issues. It is always important to stress that obtaining the divorce is only one half of the battle. In many of my cases, the post-judgment aspects of the divorce are more hotly contested than the divorce was. If a property settlement agreement is confusing and if it does give guidance as to the equitable distribution of marital assets, or to the payment of marital debts, then a person can also file a motion with the family court to reopen the case. The motion can also request a reformation of the divorce agreement.
A reformation of the divorce agreement does not modify it. Instead it is merely a recognition by the court that the property settlement agreement was incomplete, and that it failed to accurately express all of the terms of the divorce settlement.
Additionally, a divorce case can be reopened if the property settlement agreement has missed some important terms or if it has significant gaps. In many cases, the parties simply fail distribute all of their assets. Moreover, the parties fail to agree as to how all of the credit card debts are to be paid. The parties are frequently scattered brained during the divorce proceedings, and they omit many assets and debts that should be listed in the property settlement agreement. After the divorce is over the parties often realize that their divorce judgment has many holes in it. If this occurs then either spouse can file a motion to reopen the case, and request that the court assist them to reform and/or modify the divorce judgment.
3. My divorce judgment did not give me a share of my husband’s pension. I am now ready to retire but I can’t afford to. Can I file an application to reopen the divorce and make a request to receive a share of my ex-husband’s pension?
In my experience many divorce judgments fail to specify as to how a husband’s pension is distributed. Many divorce judgments fail to contain terms as to the equitable distribution of the husband’s pension. This result causes significant confusion. A very important legal issue then ultimately arises. Was the omission of the equitable distribution of the pension from the property settlement agreement intentional? Did the wife make a mistake because she did not receive a fair share of her husband’s pension? Did the wife’s lawyer overlook the equitable distribution of the husband’s pension? Did the wife give up her share of her husband’s pension in return for receiving other marital assets? In many cases the only way to answer these vexing questions is to have a plenary hearing.
Unfortunately, many ex-wives do not receive any share of their husband’s pension. Many ex-wives fail to appreciate how valuable an asset a pension is. Many ex-wives are so miserable in their marriage that they rush the divorce just to get it over with. Alternatively, many ex-wives are so anxious to start up new relationships that they rush the divorce. However, as time marches on when they reach inevitably reach their retirement age, they frantically look for some type of retirement income for support.
If this scenario is present, then a former wife can file an application with the court to reopen the divorce case. The ex-wife can request that the court split up the pension even after the divorce case is over. The moving party will then have to prepare very detailed motion papers, and submit an excellent legal brief to convince a court to consider the motion to reopen the divorce case. Moreover, the ex-wife will have to submit a new CIS. In my experience, the success or the failure of this type of motion largely is determined by the quality of the motion papers, and by the individual judge’s ruling tendencies. Some judges will view the property settlement agreement on a strict contractual basis. Therefore, many judges will rule that the original property settlement agreement was a contract and it should not be modified. Alternatively, many judges will overlook strict contractual principles, and assess whether the original property settlement agreement was fair and reasonable.
Another important factor that a court uses to assess a motion to reopen is the current standard of living of the ex-wife. If the ex-wife is scraping by financially, and if the ex-husband is living the life a rap star, then certainly this factor may certainly convince a court to reopen the case. In many cases, many ex-wives simply do not pursue obtaining a share of their husband’s pension in the divorce proceedings. This mistake often comes back to haunt them when they face retirement. If this scenario occurs, and if you get the right judge to hear your case, then you may have a reasonable chance to reopen the divorce case. The family courts do not want ex-wives to economically suffer. Many courts will address a scenario such as this by reopening up the divorce case, and by awarding a share of the pension to an ex-wife.
If the court grants the wife relief to reopen a divorce case in an omitted pension scenario, then the parties will have to have the husband’s pension valued. The parties will have to use an actuary and have the husband’s pension valued. The actuary will determine what share of the pension was accrued during the marriage. Moreover, the actuary will then assess what share of the monthly pension check the ex-wife will be entitled to receive. This type of outcome usually makes an ex-husband go berserk. However, everyone has to eat. The courts do not want ex-wives to starve, and be forced to eat dog food in their golden years.
4. I was an emotional wreck during my divorce. Can I use the grounds of duress to reopen my divorce case?
In many cases a wife is under extreme duress. Moreover, in many cases the husbands become so enraged at the prospect of losing their assets that they use psychological pressure and threats of violence to force their wife to accept an unfair divorce settlement. Under this type of a scenario a wife can file an application with the court to reopen the divorce case based on the grounds of duress. A person can claim that she was coerced to enter into the divorce agreement under the duress, and that her consent is not valid. In determining whether the wife’s consent was coerced, the controlling factor is the mental state of the wife subject to the coercion.
5. My husband pressured me to sign the divorce papers. Can I use this as a reason to reopen my divorce case?
A wife can also allege that the divorce agreement should be reopened because it was induced by the undue influence of the husband. A wife can allege that her husband used moral and physical pressure to force her to enter into the divorce agreement.
Undue influence is a major concept in the law. A contract can’t be enforced if a party used unfair persuasion or domination to force the other party to agree to it. A divorce judgment is essentially a contract between two spouses. In many cases, a husband will use economic leverage to force his wife to agree to an unfair divorce agreement. The husband may withhold child support or threaten to not pay the mortgage if the wife does not sign the divorce papers. Unfortunately, many wives are blackmailed into signing an unfair property settlement agreement. Many wives’ primary concern is to keep a roof over the children’s heads. Many wives only worry about today and they fail to appreciate that haphazard decisions made today, can ruin their future. In many cases, devious husbands will withhold financial support as leverage to obtain a favorable outcome in a divorce case. In this type of scenario, an ex-wife may be able to prove to a court that there are compelling circumstances to warrant reopening the divorce case.
6. I feel that I have been cheated in my divorce. Can I file an application to reopen my divorce case?
Many spouses often feel cheated after the divorce case is over with. If both spouses feel cheated then often this is a sign that a fair divorce settlement was reached. There is a significant number of post-judgement motions that are now pending in the courts that request that a divorce judgment be set aside or reopened. It is very difficult to predict whether a motion to reopen a divorce case will be successful.
The strongest ground that a party can allege to set aside a divorce judgment is that it was based on fraud. It is common knowledge that many husbands hide their assets during the divorce proceedings. Many husbands conceal their assets, or they fail to divulge their existence during the divorce. Additionally, many husbands intentionally undervalue assets. If a wife can prove that their husband hid and concealed assets, then she may have strong grounds to reopen a divorce case.
7. My husband concealed assets during the divorce case. Can I reopen the case?
Unfortunately, in many divorce cases, many husbands hide their assets. Many prospective clients always ask me what is the difference between a legal separation and a divorce. My response is that a legal separation gives a husband more time to hide his money and assets. Often a husband might attempt to undervalue or disguise marital assets. It is not uncommon for a husband to transfer their assets to relatives or to new girlfriends. These parties often hold the husband’s assets in trust for them until after the divorce case is over with.
Additionally, many husbands engage in economic warfare to obtain the best possible divorce settlement. For example, in anticipation of a divorce, a husband may persuade his boss to delay the delivery of a bonus, stock option, retirement benefit, or a pay raise until after such time as a divorce is final. If this occurs, then this may be a strong ground to reopen up a divorce case.
In summary if a person can prove that his/her spouse hid assets during the divorce proceedings, then this is the strongest ground to reopen a case. Moreover, if a spouse can prove his/her case, then in most cases the court will award counsel fees to the prevailing party. In my experience, this is the most “sure shot” avenue to pursue in any application to reopen a case.
8. What is the procedure to reopen a divorce case?
The moving party will have to prepare very detailed motion papers, and submit an excellent legal brief to convince a court to consider the motion to reopen the divorce case. Moreover, the ex-wife will have to submit a new CIS. In my experience, the success or failure of this type of motion largely is determined by the quality of the motion papers, and by the individual judge. If the motion papers are substandard, then your chances of prevailing on a motion to reopen are less than 1%.
If the court believes that you have strong merits to reopen a divorce case, then the court will schedule a plenary hearing. At the plenary hearing, witnesses will testify, the court will review the financial information, and the original divorce documents. The court will assess whether it if fair and reasonable to reopen the divorce judgment. A common issue is whether the husband intentionally concealed assets during the divorce proceedings. The court will assess if the husband intentionally committed a fraud by hiding assets. A court will also assess the standard of living of the ex-wife. If the ex-wife’s standard of living has decreased substantially since the date of the divorce, then this is very strong evidence to justify reopening the divorce judgment.
In most applications to reopen, the court will also perform a Crews analysis. Basically, the court will assess what was the parties standard of living that they enjoyed during the marriage, and compare it to their current standard of living. In the seminal case of Crews v. Crews, 164 N.J. 11 (2000), the New Jersey Supreme Court held that in all divorce cases, the court must make an assessment on the record what was standard of living that the parties enjoyed when they were married. In my experience, if the marriage was a long term marriage, then the courts will certainly give this factor strong weight in any application to reopen a case. The court will try to assess if both parties have been able to maintain a reasonable standard of living after the divorce.
In my experience, many motions to reopen divorce cases are settled if a court grants a plenary hearing. The courts are extremely swamped. The courts strongly encourage the parties to settle. Most judges pre-try their cases. The judges have conferences with the lawyers before the plenary hearing is held. At these conferences the court will give the lawyers a preliminary view of the case. This preliminary view is reached by the judge by reviewing the motion papers and by hearing oral argument. In most cases the court’s preliminary view of the case is 95% accurate. Therefore, the parties will save thousands of dollars in legal fees if they accept the court’s preliminary view and reach a settlement.