A property division that has been agreed to by the parties or ordered by the court is very hard to get out of. Courts favor "done deals" and do not want to encourage the parties to run back to court to litigate their dispute all over again.
In most states, there is a period of time after a court enters its order in which one of the parties can ask the court to reconsider its decision. Such a request may be called a motion to reconsider or a motion to vacate the judgment. The time period for making such a request varies between states, but it is often thirty days after entry of the court’s order that is at issue.
The party seeking reconsideration may argue that the court made a mistake in understanding the facts of the case or in applying the law. The party also may claim that some new facts have arisen that make the original order unfair. (Generally, the party claiming new facts must have a good reason for not having discovered the facts earlier.) In most cases, courts turn down a party’s request for reconsideration, but if the court accepts the party’s arguments, the court may modify the order or conduct additional hearings.
Fraud or duress are two other bases for seeking modification of a court order or settlement agreement. Fraud means that one party has deliberately deceived the other party on a significant matter. If, for example, one party to a settlement agreement lied about the amount of his or her assets and the other party later found out that a substantial amount of assets were hidden, that could be a basis for asking the court to vacate the property settlement and order a new distribution of property.
Duress occurs when one party is forced into an agreement by extreme, unfair pressure from the other party. In this circumstance, a court also might vacate an agreement and order a different distribution of property. Duress is difficult to prove. Most judges assume that parties to a divorce agreement are under some degree of stress. The amount of stress and pressure that a party must have been under before a court will allow the party to back out of a deal is very high.
The time period for seeking to modify an agreement or order on the basis of fraud or duress usually is longer than the time period for asking for reconsideration because of the court’s mistake of facts or law. The time period varies from state to state, but a period of one year from the time of the order or agreement is common.
If a party does not like a trial court’s decision, another way to seek relief is to appeal to a higher court. The first appeal usually is to the state’s appellate court, although if the case has been decided in a small state or if the case involves an issue of substantial public importance, a direct appeal to the state’s supreme court may be possible.
Appeals are expensive–often costing as much as the cost of the trial. The decision to appeal must be made promptly, often within thirty days of the trial court’s decision. If the party wanting to appeal waits beyond the period provided by statute or court rule for filing a notice of appeal, the right to appeal may be lost. The notice of appeal is a document that lets the trial court, the appellate court, and the opposing party know that an appeal will be taken.
More appeals are unsuccessful than successful. The likelihood of success depends on the facts of the case. Before taking an appeal, a party may wish to seek an outside opinion from an attorney who has not been connected with the case regarding the likelihood of success of the appeal. Sometimes the attorney who handled the trial has been so close to the case that he or she cannot be fully objective about the merits of an appeal.