Home DIVORCE TIPS, ADVICE & NEWS "How To" Divorce Tips How to modify your divorce settlement after the divorce is finalized

How to modify your divorce settlement after the divorce is finalized

Usually, when a case is over and the judge signs off on the order/settlements, the matter is what is called Res Judicata. That is fancy legalese for a thing adjudicated, a thing decided. What that means is it is over. You can’t go back and change anything. But with divorce and family law matters, most things are not res judicata. Technically, within reason, you can always go back in a modify things. Especially with respect to custody and spousal support.

For example, the State  has an interest in preventing a spouse from becoming a “public charge.” So that if years after the divorce the wife, say, is destitute and getting welfare and the husband is rich, the court would open the divorce agreement/order and likely order the former husband to pay additional alimony to the wife. The same theories hold with the kids. Either parent can always move to upwardly or downwardly modify the judgment with respect to the children based on changed circumstances.

There are different ways to go about getting a judgment of divorce changed in New York state. You can do an order to show cause to modify the judgment, you can move to vacate the judgement, or, if the court made a mistake of law or fact, you can even appeal the judgment in a higher court.

Usually a modification is made with a showing of extreme hardship. But alimony and maintenance may be increased with a showing of newly discovered evidence and you can even do that nunc pro tunc (now for then) meaning, retroactively. You can get your alimony increased retroactive to the time of the filing of the petition for modification – no matter how long it takes the court to actually have a hearing and issue a new order.

The good thing for the spouse who is seeking the modification is, if there was no hearing at the time the judgment of divorce was signed (that is, the stipulation of settlement was based on agreement and not on a hearing) then you may be entitled to a hearing as a matter of right so long as you can show in your papers that there genuinely issues of fact and that an inequity has resulted due to the lack of a hearing.

By New York Divorce attorney: lawyertodivorce@aol.com

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