Divorce Litigation Bullet Points 18: Post Judgment Modifications and Vacating a Divorce

For some time lately, I’ve been publishing articles, as bullet point guides as quick resources from articles about divorce litigation I have posted over the year.  These guides are intended to be a quick resource regarding some of the nuances involved in divorce litigation. If you’ve been considering divorce proceedings yourself, you may have found that it can be quite difficult to understand how the process works. Any kind of divorce can be a complicated experience, but litigation is often particularly stressful because it’s such a complex and emotional way to end a marriage.

These bullet-point guides aim to give you quick and convenient information about some of the most challenging aspects of a divorce litigation procedure. In this final divorce litigation bullet guide, we’ll be finishing our series with a discussion of post judgement modifications, and what it means to vacate a divorce.

Enforcing and Modifying Divorce Terms

Even in amicable divorce cases, issues can often arise with the final judgement of a case that need to be addressed by the Supreme Court. As a divorce attorney in New York and Nassau County, I frequently work with clients who need help both enforcing and modifying all kinds of agreements following a divorce judgement:

• Some issues must be handled by the supreme court. These often include enforcement of property settlements or attempts to vacate, instead of modifying, terms of the divorce relating to child custody, equitable distribution, maintenance, and support. There are also times when someone might choose to proceed in the supreme court because the supreme court can deal with various issues as part of a single case, while the family court requires consideration of the issues as separate cases. In other words, child support is its own case. Your child custody lawyers will deal with custody is its own case and it is handled in a different court room than child support.
• Contempt and enforcement applications may arise after a divorce when the husband or wife is asking the court to punish the other spouse for disregard of an order. This allegation may indicate that one of the parties violated the provisions of a property settlement, a requirement to sell a property, or an order of protection, among other things.
• Modification proceedings are another kind of post-judgement divorce case that may emerge in some cases. People may approach the court with a desire to modify child support, custody, or other issues. The specific language of a settlement agreement will control when modifications can be sought. Barring specific language about modifications, for a court to consider a modification of a child custody or parenting time there must be a substantial change in circumstances from the time of the previous order for a change to be made and the change must be deemed to be in the best interests of the children.  The default reasons to modify child support are:  three or more years has elapsed since the last order; income has changed by 15% or more; or there has been a substantial change of circumstances.
• Courts will need to consider a range of factors when deciding whether a change in circumstances has been substantial enough for a modification to be considered. The courts will usually not consider a request for modification if the alleged change is not substantial.

Can a Judgement of Divorce be Vacated?

Modifications of a divorce order are a possibility for some couples. It is possible for a spouse to approach the courts and ask for them to change the circumstances of the divorce order if there has been a substantial change in circumstances. However, a modification does not erase the order that was made previously. Some of my clients wonder whether it’s possible to vacate a judgement of divorce, or have it removed as though it had not existed at all.

• The Civil Practice Laws and Rules, the “CPLR”, dictates the mechanism by which parties can request a court to vacate, open, or relieve them from the terms of a divorce judgment. The person seeking a divorce judgement will need to make a motion asking the Supreme Court to grant their request. One reason that the court may grant the relief is that the order was granted on default. For this motion to proceed there needs to be an excusable reason alleged why the person defaulted and a meritorious defense raised. However, the motion usually must be made before a year has passed since the party received notice of the entry of judgement on their situation.
• A spouse may request for a divorce to be vacated if they recently found new evidence on a case (that could not have been found with diligence previously), are dealing with issues related to fraud, or discovered that the court had no jurisdiction in the first place.
• Crucially, it’s important for anyone hoping to vacate a judgement of divorce to have a valid reason for their request. A common excuse I’ve heard is that the person was never initially served the divorce papers in the first place. In some cases, the court may order a traverse hearing that allows them to decide whether the claim of lack of service is legitimate.
• When deciding whether to allow for a vacation of judgement, the courts will consider a variety of things, including how long the default has existed, any failures by the law office, or the presence of clerical errors on the part of the court. Inability to appear at court and being threatened by another person may also be reasons considered for a default.

If you would like to learn more about modifying and enforcing the terms of a divorce judgement, or you’re concerned about whether a divorce judgement may be able to be vacated in your case, or you need to defend against a request to vacate the divorce, then you can find more information available on this website. Please remember that you can reach out to me, Mr. Darren M. Shapiro for additional guidance on your specific case.

Get in touch through our online contact form or call to schedule an initial consultation (up to the first thirty minutes are free), via video chat, call, or in-person consultation. Mediating couples that wish to use my services as a divorce mediator are requested to have their initial consultation together to help ensure my neutrality as a mediator.