You and your spouse signed the settlement agreement, the court entered your divorce, a few weeks or months have gone by, but now you regret some or all of the terms of your divorce. Maybe you think you could have gotten more money from your spouse, maybe you think you were pressured into entering into the agreement or maybe you wish you had hired an attorney to look over the papers before you signed them – is there anything you can do now?
Unfortunately, in most instances, the answer is “no.” It is very difficult to undo, or, in technical terms, to “set aside” or “be relieved from,” a judgment of divorce. In fact, it is public policy in New Jersey to enforce judgments and to grant requests to set aside judgments sparingly. Although difficult to prove, the following are the most common reasons that a litigant may be “relieved from” a judgment or court order:
- Mistake, inadvertence, surprise or excusable neglect: This does not mean that you now think it was a mistake to enter into the divorce agreement or that you were neglectful in investigating your former spouse’s assets or income. Rather, this section usually refers to honest mistakes about the substance of the judgment that, for whatever reason, neither you nor your former spouse was able to discover during the divorce proceedings (i.e. a serious math mistake). However, mistaken or incorrect beliefs about the law will not entitle you to relief under this section.
- Newly discovered evidence: This has to be evidence that is actually material or important to the issue at hand. For example, the discovery that your former spouse had a second job that he or she did not disclose during the divorce litigation may be material to the issue of alimony, while the discovery that your former spouse had a new girlfriend or boyfriend during the divorce litigation would not be material to the issue of alimony. It also has to be evidence that you could not have discovered during the divorce litigation through due diligence. If you probably would have discovered the evidence had you exercised due diligence (i.e. by requesting documentation and information from your spouse during the divorce litigation) then you probably would not qualify for relief under this section. Finally, it must be likely that the newly discovered evidence would change the result if a new trial was granted. If the result would probably be about the same, then this section would not apply.
- Fraud, misrepresentation or misconduct by the adverse party: You may be entitled to relief under this section if your former spouse lied or materially misrepresented him or herself during the divorce litigation or if your former spouse fraudulently induced you into entering into the divorce settlement. However, like in paragraph 2 above, you must be able to prove that the fraud or misrepresentation materially affected the final result and that you could not have discovered the fraud or misrepresentation through due diligence.
- Any other reason: Although this “catchall” section seems enticing, it is actually reserved for only “exceptional” circumstances where the enforcement of the judgment would be extremely unjust, oppressive or inequitable. This goes beyond mere “unfairness” and is usually reserved only for those situations where the result of the divorce judgment would be truly shocking.
If you think you may be able to “set aside” your divorce judgment, you should talk to an attorney as soon as possible. You do not have an unlimited amount of time to file an application to set aside the judgment. The New Jersey Court Rules require that such applications be made “within a reasonable time” and usually less than one year after the entry of the judgment at issue.
Amy L. Rokuson focuses her practice on matrimonial law, including divorce, child custody, parenting time, alimony, child support, domestic violence issues and same-sex divorce and custody matters. Her practice is located in Obermayer’s Cherry Hill office. She can be reached at 856-857-1435 or at Amy.Rokuson@obermayer.com.