If you believe you received an unjust divorce settlement, you have a right to ask the court to revisit your case. However, a judge will only reopen a divorce settlement if you can prove there are exceptional and compelling circumstances. This is the time to call an experienced divorced attorney at Cohen Family Law.
Although it is rare for the courts to revisit a divorce case, there may be grounds to do so if you can prove that the settlement was made under duress or obtained through fraud. Given the heavy burden of proof to reopen a divorce settlement, it is essential to have the informed representation we provide. Contact our office today to speak with a trusted Arizona divorce lawyer.
Proving Exceptional and Compelling Circumstances To Reopen an Arizona Divorce Case
Divorce is a difficult transition and neither party gets everything they want in a divorce settlement. Being upset that you didn’t walk away with everything you wanted is not enough to persuade the court to reopen your case. Instead, you must provide evidence of one of the following situations:
- Your ex-spouse committed fraud, made misrepresentations or took part in other misconduct, such as transferring assets to an offshore account or third party before or during the divorce.
- The property settlement agreement and/or judgment was obtained through duress or coercion, making the divorce settlement invalid.
- There was a mistake, oversight, or excusable neglect, such as failing to include your spouse’s retirement plan in your divorce agreement.
Reopening a Divorce Settlement When Your Spouse Conceals Assets
The strongest grounds for reopening your divorce settlement is that the agreement or judgment was based on your ex-spouse’s fraud, misrepresentation, or other misconduct. Examples include:
- Intentionally concealing or failing to disclose assets
- Transferring funds to an undisclosed account
- Transferring assets to relatives or partners who agree to hold assets until the divorce settles (fraudulent conveyance)
- Underestimating the value of assets
- Deferring a bonus, stock options, retirement benefit, or raise until the divorce is final
If you learn that your spouse engaged in any of the above or similar conduct, it takes an experienced divorce attorney to protect your rights. Our legal team regularly collaborates with forensic accountants who can help prove your spouse intentionally undervalued or illegally concealed or transferred assets during the divorce.
Reopening a Divorce Settlement When You Were Under Duress or Undue Influence
Soon-to-be-ex-spouses often treat each other poorly during a divorce. In extreme cases, however, a spouse might use intense pressure, threats of violence or even force to get their spouse to accept unfair terms.
Duress involves threats, physical violence, or other illegal conduct to force someone to agree to something against their will. Similarly, undue influence involves convincing a person to agree to something by mental threat, such as saying “I’ll take the children from you if you don’t agree to my terms.” If you can show that your spouse used duress or undue influence in your divorce, the court may agree to reopen your case and invalidate the settlement agreement.
Reopening a Divorce Case to Divide a Pension
Failing to include your spouse’s retirement or pension plan in your settlement agreement could form the basis for reopening your divorce case. However, some judges may be unwilling to change the original settlement terms if the agreement was fair and reasonable, especially if you gave up your share of the pension in exchange for other marital assets. On the other hand, if you received very few assets and little or no retirement funds and your ex got most of the assets including retirement accounts, the court may take another look at your divorce settlement.
What Is the Procedure for Reopening a Divorce Case?
To reopen a divorce settlement, you must file a motion and other legal papers with the family court. Because this procedure is complicated, it is essential to have the assistance of a capable divorce attorney. When you meet with us, we will determine whether you have strong grounds for reopening your divorce case and guide you through the process.
In any event, you must act quickly. Generally, your motion must be filed within a “reasonable” time – as soon as practicable after you find a problem with the original agreement. However, if you’re claiming the following grounds, your motion must be filed within one year from the date of your divorce judgment:
- Mistakes, oversight, or neglect
- Newly discovered evidence
- Fraud, misrepresentation, or other misconduct by your ex-spouse.
If the court finds compelling reasons to reopen your case, it will hold a hearing during which witnesses will testify and your attorney can present evidence, cross-examine witnesses, and make oral arguments. The court will review both sides’ financial information and the original divorce documents. After the hearing, the court will decide whether you have shown sufficient grounds to reopen the case.
While it is possible to take legal action to reopen your divorce settlement, you may also be able to resolve these issues with your ex through a negotiated settlement and avoid the time and expense of a court proceeding. Trust our legal team to advise you of all your options and choose the best course of action.
Contact Our Experienced Arizona Divorce Attorney
If you believe there are grounds for reopening your divorce case, turn to Cohen Family Law. We will take the time to understand your situation and help you make informed decisions about the next steps. Contact our office today to arrange a consultation.