Modification of Property Division in Divorce

propery divisionGeorgia law is clear concerning the modification of a final judgment concerning an equitable division of property in a divorce case. It cannot be done. Although some final orders, such as those for alimony, child custody, child support and visitation may be modified based on a change in circumstances, a change in circumstances does not allow for the modification of a final property division order.

The Georgia Supreme Court made it clear nearly two decades ago that a final judgment of divorce that resolved all issues regarding property division cannot be modified simply because one asset was not divided. There is one narrow exception to the rule provided for in Georgia statutes: If the judgment was based on “fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant…” the final order may be set aside.

Elements of fraud for setting aside a final judgment

It is not easy to have a final judgment set aside due to fraud. The party seeking to set aside the judgment must prove:

  • The adverse party made a false statement of fact.
  • The party who made the statement knew or should have known that the statement was false.
  • The statement was made specifically to make the other party rely upon it.
  • The aggrieved spouse reasonably relied upon the false statement.

The adverse party may claim that there was no way he or she could have known the fact relied upon by the other party was false. Even if the statement was false, the adverse party may also claim there was no intent to deceive, or that the allegedly false statement was an opinion, not a fact. Finally, there may be a challenge that the complaining spouse should have known not to rely upon the statement and should have conducted an independent investigation.

Setting aside a judgment for fraud is easier when marital assets existed at the time of the final judgment but were intentionally not disclosed by one spouse. It may also be set aside if it can be proved that one spouse deliberately deceived the other about the value of an asset, such as the amount of money in a retirement account.

Consequences of having a final order set aside

If the ex-spouse is successful in setting aside the order for property division, the entire divorce judgment will be set aside. If the spouse who asked for the judgment to be set aside received property, the property must be returned and the entire property settlement will be adjudicated anew.

Since the final judgment of divorce does not allow for modification of a property settlement, and the standard for setting aside the judgment is difficult to meet, the ideal approach is to be sure the settlement is done right the first time. Both parties should consult a family law attorney who can help.  If you have further questions and need help please contact me.

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