Modify Divorce Decree

When the terms of your divorce are unjust, or circumstances have changed, you can petition to appeal or modify your divorce decree. If you want your divorce decree overturned, you will need to file an appeal.

By WomansDivorce | Answers by Brette Sember, J.D.

This is usually a drawn-out process because you are asking an appellate court to overturn a lower court's decision. Generally an appeal won't be considered unless there are exceptional and compelling circumstances, such as rulings that don't comply with the statutes, if there is a fundamental inequity in decree, or if it can be shown that fraud or misconduct has occurred.

DIV-banner-350x250_4.jpg

You can also petition to modify your divorce decree if the circumstances have changed. For example, child support or periodic alimony may be adjusted, child custody may be modified, or visitation schedules can be changed. If you want to have your divorce decree modified, you will need to consult an attorney to understand what your options are.

The following input from the legal expert may also give you some insight to your own situation.

Can a custody order be appealed?

Debbie's Question: A judge just awarded my former son-in-law primary physical custody of my granddaughter, but gave joint custody to both him and my daughter. My daughter is a good mother, but the judge did not like the anger issues my daughter had with the ex. He had been physically abusive toward her so not surprisingly she did have anger towards him. The judge did not care about that; even though there is no evidence at all that my daughter was a bad mother. Can this be appealed and which court do I use?

Brette's Answer: The thing you have to understand is that appeals have to do with issues of law, not issues of fact. The only thing that can be appealed is whether the judge applied the law correctly - you do not get to re-argue facts. If you do not know where to appeal, call the court clerk's office and ask them what procedure to follow. There is usually a brief window of time during which you can actually file for the appeal.

Can he overturn the divorce because of a settlement violation?

Rae Asks: I've been divorced for over a year and in our mediation papers, I agreed to pay half of his bankruptcy filing fees but I did not because he did not pay his. Can he take me back to court and overturn our divorce?

Brette's Answer: This is not grounds for overturning the divorce. He can file for a violation of the court order, but since he violated it too, it wouldn't be of much use to him.

Can I dispute anything if I signed the uncontested divorce papers?

Madra's Question: I signed some uncontested divorce papers and I have found out there were important things I did not know about. Can I dispute these items even if I signed the papers?

Brette's Answer: No. If you sign the papers without duress you are assumed to have consented to everything in them. You can however seek modification if there has been a change in circumstances.

Is a Judgment of Divorce (JOD) a contract or can it be modified?

Barbara's Question: When a divorce is settled in mediation, my understanding is that the JOD is considered a contract. Is this true? How can my ex be taking me back to court for modifications after we agreed to everything?

Brette's Answer: There's a difference between a contract and a court order. Both are enforceable, but in different ways. I think you need to speak with an attorney in your state.

Is the divorce invalid if our child's date of birth is wrong?

Marcia's Question: I learned through an internet search that my husband filed for divorce and it was granted several years ago. I petitioned the court clerk for a copy of the decree. The problem is that it has incorrect dates listed for my marriage date and our child's date of birth. Does this invalidate the divorce?

Brette's Answer: The dates aren't as much of a problem as the fact that you apparently did not receive notice of the divorce. You must receive notice and have a chance to respond for it to be valid. You can seek to overturn it if you wish. (Editor's note: If your husband couldn't locate you and received permission to do service by publication, then you probably can't have the divorce overturned if you didn't respond to this form of service. Read more about how divorce papers are served.)

Can the divorce be reopened if the separation requirements weren't met?

PJ's Question: Our divorce papers state we have been separated since October 12th and our divorce was finalized and entered on March 19th of the following year. Illinois law states “If the parties have lived separate and apart for a continuous period of at least six months before the entry of judgment dissolving the marriage, the two year minimum requirement may be waived upon written stipulation of both spouses filed with the court”. Does this give me grounds to re-open the case? We did a non-contested divorce, agreed on things that the judge apparently didn’t include in the paperwork. All documents regarding debt, possessions, etc. were written out by my ex and me and notarized (at the courthouse) and I have come to find out those apparently mean nothing.

Brette's Answer: If your divorce is final, it is over. Only the items included in the decree are enforceable. If he is not following the decree you can file for violation and enforcement. 

How can we modify our divorce agreement?

Judith's Question: My ex and I have agreed that we would like to modify the divorce agreement regarding my pension from my teaching job. How can we change this? The Teachers retirement Board has said it must go back to the court. Can this be done easily without huge lawyer's fees?

Brette's Answer: Yes you can submit a stipulation with the agreement. Talk with the court clerk to find out what papers to file or better yet, talk with your attorney to make sure this is a good decision and how to implement it.

Would a notarized agreement attached to the divorce be okay?

Marie's Question: My ex and I have agreed to have my youngest daughter live with me and for me to now pay insurance for her. Also, child support will not be given to me or my ex. Can we have this agreement notarized and attached to our decree or will we have to go through our lawyers.

Brette's Answer: A notarized agreement is not enforceable in court. You need to sign a stipulation, submit it to the court, and have the court incorporate it into a new order.

Can our divorce agreement be modified without going to court?

Rocio's Question: I need a review of the alimony and child support that I am currently receiving because it does not match the final decree. My ex is very intimidating and abusive, and he said we can modify the agreement between us with a notary. Should I trust him?

Brette's Answer: To modify your settlement, you need to go back to court. Anything else is not enforceable. You can create another settlement and have it approved by the court.

Where can I get a modification form to change my divorce?

Brette: It depends on what you want to modify. If you want to make changes to custody or child support that case would normally be heard in your state family court. In some cases the trial court includes a provision saying that it retains jurisdiction over all matters - if that's the case, then you need to go back to that trial court. If you're looking for a change to the division of assets, you need to go back to the trial court. If you're not sure where to go, call your local family court and ask them.

Is there a statute of limitations to appeal a divorce?

Robin's Question: I received the final judgment over a year ago, and the settlement wasn't fair. Is there a time limit on how long I can have the judgment reviewed?

Brette's Answer: Usually there is a very short period of time in which to file your intent to appeal a decision. You should consult an attorney.

Do court transcripts overrule the decree?

Brette's Answer: A decree is a court order that must be obeyed. A transcript is the record of what happened in the court room. A transcript can be used to change a decree that was written incorrectly.

How can I modify the divorce to match what the judge stated?

Karrie's Question: My divorce was final twelve years ago. I was present in court, but he was not as he is in the military. The judge stated in court that I am to receive the tax exemption every fourth year. Our dissolution of marriage just has a general statement that the non-custodial parent may receive the exemption as long as he is current with support. I have claimed the exemption every fourth year. This year he has decided to claim our son, even though he knew it was the fourth year. How can the decree be changed when it comes to exemptions, and am I within my right to claim every fourth year?

Brette's Answer: You need to obtain the transcript and then file for a modification of the decree so that it matches the transcript. Good luck.

Can a divorce be modified if the wife received nothing?

Erica's Question: My husband's grandmother got divorced about 3 or 4 years ago. She is about 80 years old, and did not take anything except for a suitcase of clothes when she got divorced. She did not know that she could get part of their property until she talked to me. She was married to her former husband for about 30 years. Is she still able to receive half of what they owned while they were married even though time has passed?

Brette's Answer: If she consented to the divorce or did not contest it, then she already had her chance to do that and it has passed. She should talk to an attorney though to find out if everything was done correctly and legally. Good luck.

How can I contest a modification of our divorce agreement?

Virginia's Question: My ex filed to have our divorce decree modified. If I do not agree to the new terms, how do I fight it?

Brette's Answer: You either retain an attorney who will handle it for you or you go to the court date and make your position known. You may also be able to file a response; however you will need some legal help to know what paper to file and how to word it.

Can a divorce be modified if the settlement was unfair?

Doreen's Question: I divorced my husband five years ago after a 20 year abusive marriage. I receive $800 a month in alimony, but there is a clause that I will lose it if I get a job that pays more than $800 per month. Also, the child support I get no longer provides for my son's needs. My friends have read my divorce decree and tell me that I should have received a lot more. Is there anything I can do after 5 years divorce?

Brette's Answer: My experience is most people walk away from a divorce feeling as if they got the short end of the stick. No one ever comes out a winner in this situation. If there has been a change in circumstances (a worse situation for you or a better one for him), you can seek increased child support. Alimony can be increased with a change in circumstances as well. You should talk to a different lawyer if you want to get information about pursuing this.

Can the clause that my son not be around my boyfriend be removed?

Terri's Question: My ex-husband put a stipulation in our divorce papers that my son can't be around the guy I'm seeing. I've had people tell me that by law it can only stay in the papers for a year. Is this true and if not what can I do about taking out of papers?

Brette's Answer: You need to check with an attorney in your state about the time limit. You can always file for a modification if there has been a change in circumstances.

Can I appeal the settlement if I signed under duress?

Nancy's Question: Can a property settlement be changed if it has been over 2 years since the divorce. I agreed to pay half of the house payment and half of the utility bills until the house sold. I left because I did not want to stay in that town. There was a lot of duress and pressure on me, so I just signed to get out of there. My ex still lives in the home, and I do not think I should pay his utility bills. Can I appeal the settlement?

Brette's Answer: It is likely too late to appeal and an appeal would not solve your problem most likely since the appellate court only considers whether the trial court followed the law. You should schedule a consultation with an attorney who can review your case and tell you if you have any chance of having the settlement modified.

I felt pressured to sign the agreement

Sherryl's Question: My attorney didn't notify me about the court date until two days before, and it was obvious that she wasn't prepared for it. She didn't call for any witnesses to the mental abuse I had suffered, although several people (including a therapist) had sent in affidavits and said they were willing to testify. After literally all day of negotiating, I agreed to a settlement that I was not ok with under much duress. On top of this, my attorney set it in stone by questioning me ON THE RECORD to say I was in the right frame of mind to agree to the terms set forth. I wanted to scream NO! but I agreed. Is there anything I can do about this now?

Brette's Answer: If you agreed to it, there isn't much you can do now. I hear this kind of thing a lot. To others reading this, I would urge that you not agree to anything unless you are sure. Don't let your attorney talk you into it. It's hard to stand up for yourself, but you have to because no one else is going to do so. I think it is also very common to agree to something, think it is the right decision and then regret it later. You can spend all your life second guessing yourself or you can try to move forward and make the most of what you have. It is always possible to go back and modify a custody order in the future if it is not working, so keep that in mind.

The divorce was granted and I was never notified.

Pam's Question: What can be done if your husband divorces you, and you did not know anything about it?

Brette's Answer: It depends on how it happened. If your husband told the court you were personally served and you weren't, you have recourse - ask that the judgment be overturned and the case reopened. However, if your husband could not locate you and the court permitted publication of notice, there isn't much you can do.

Can he contest the divorce if he never responded to the petition?

Lisa's Question: When I left my husband and moved in with my mom, I talked with a lawyer about how to proceed with a divorce. After I had established residency, I filed the divorce papers and had my husband served by a process server. He never responded to the papers, so the divorce was granted by default. Now my ex has retained an attorney and is trying to contest the divorce. Am I divorced or not, and what can he do now?

Brette's Answer: You're divorced. If he overturns it, then you would have to start over. It sounds like it went by the book though based on what you said. You should have an attorney represent you.

The divorce was finalized before I could contest it.

Marie's Question: My husband went to another state, lived there 6 months, and then filled for a divorce. On the papers he lied more than once, concerning where we were married and where we lived. He also lied and said he did not know where I was and did not have any contact with me. So when I informed his attorney of this and told him that I would not sign the papers because it could be falsifying information, they went behind my back and had the divorce finalized. I lost custody of my children and he is using them as a pawn against me. How can I get the divorce papers changed and get my children back?

Brette Answers: You need to speak to an attorney in your area. Take copies of all the papers and a list of everything that is false in them. You need someone to sit down and carefully read everything and tell you what your options are. Ask for a free consultation first so that you can find an attorney you are comfortable with. If you aren't sure who to go see, contact your local bar association and ask for a referral to a matrimonial attorney.

Topic: Appealing after non-appearance.

Jodi's Question: My ex had a modification to parental visitation sent to me at an address that doesn't take mail. By the time the mail delivery got figured out, I received the notification while moving to a new house. Unfortunately, the papers were misplaced during the move and not found until after the deadline for contesting the modification. It got filed by default. Is there anything that I can do to get the visitation agreement set back to something more reasonable?

Brette's Answer: You can file for a modification and present your side of the story. I don't think you have much hope of overturning the judgment since you were served - misplacing it is not an excuse the court will be interested in.

Appealing an order to pay attorney fees.

Maria's Question: I am ordered by the court to pay his attorney's fee. Can I appeal on that?

Brette's Answer: You can appeal any ruling. You need to follow the proper procedures for filing the appeal though, and it is a good idea to have an attorney handle this for you. You may have only a short period of time in which to file papers indicating you wish to appeal, so don't wait. Good luck.

What if I can't afford a lawyer to fight the appeal?

Kelly's Question: The divorce went final a little over 60 days ago. My ex said he filed an appeal even though I have not received any papers yet. My previous attorney does not handle appeals. I cannot afford to hire a new appeals attorney for $10,000. Do I have any options?

Brette's Answer: You absolutely have got to have an attorney for an appeal. It is technical and complicated and you can't do it yourself. Your ex may be telling you he filed it but did not actually do so. You must be served with a notice for it to be legal.

Can he get a new trial if he didn't like the outcome of our divorce?

Susan's Question: I was just granted a divorce after approximately 3 years. I was given monthly alimony & half of a business. My ex did not like the outcome and has filed a motion for a new trial. What are the chances of the judge granting a new trial?

Brette's Answer: It's unlikely unless there was a mistake of law or some information that was not considered. Good luck.

What if he didn't disclose everything during our divorce?

Beverly's Question: My ex bought a home before our divorce and put that property under his sister name (using his own money) and didn't disclose that during divorce. I found out this after signing the settlement. Do I have any recourse?

Brette's Answer: Everyone is required to make complete financial disclosure during the divorce. He did not. Your attorney can help you move forward with re-opening the property aspect of the case. Good luck.

Topic: Changing old divorce property settlements

Maggie's Question: My husband was previously married for several years, with one child from the marriage. He is considering retiring, but recently learned that he agreed in his previous divorce that his ex-wife would receive all the survivor benefits from his retirement plan. This would leave me with nothing if he died, and his health is not the best. Can their property settlement be revised or is it too late? The divorce was ten years ago.

Brette's Answer: It's too late, unless he didn't actually agree to this. Not reading the property settlement agreement wouldn't be a good enough excuse. Generally, once a divorce is finalized, you cannot go back and change the terms of the financial settlement unless there was fraud or one of the parties was not fully informed. If you have concerns, you could ask an attorney to read the document and court order. Good luck.

Topic: Can the alimony and retirement ruling be revised?

Anne's Question: In my divorce decree I had forfeited all rights to my ex-spouses military retirement and alimony so that I may keep custody of my daughter. The divorce was over ten years ago. Can the ruling of his retirement and alimony be changed?

Brette's Answer: It is unlikely. Talk to an attorney who can review the entire case. Good luck.

Can I get any of his retirement if it wasn't included in the divorce?

Tena's Question: My ex forgot to tell his lawyer about his 401k when we divorced. He is now working for a different company, and they say that I'm entitled to some of the money. His lawyer wants me to sign a waiver saying I will not touch his 401k, but I am not signing anything right now. Would I be able to get some of this money, and if I can how do I go about doing so?

Brette Answers: Yes, you can ask for part of the pension. You need to file a petition to modify the divorce settlement or judgment to include this. Get a lawyer, who can advise you how to best come out of this situation.

Brette 144x162Brette Sember Family Law Expert

Copyright WomansDivorce.com

Additional Information: