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Is Asset Division is Modifiable?
Although many other aspects of Georgia divorce are modifiable, like alimony, child support and child custody, a determination made by a judge or jury concerning the equitable division of marital property is not modifiable in Georgia. According to Georgia law, if the final judgment and decree of divorce in a case purports to settle all issues regarding alimony and property division, revision or modification of the provisions of the divorce decree regarding the equitable division of property is not permissible. Holler v. Holler, 257 Ga. 27 (1987). Additionally, unlike an award of alimony, a judgment determining the equitable property interests of the parties is final and not subject to abatement because of the remarriage or death of either party. Herbert v. Huggins, 231 Ga. 489 (1973).
There are very limited exceptions to this rule of law prohibiting the modification of the equitable division of a couple’s marital property. There are three ways that a party may potentially seek the modification of his or her divorce decree concerning equitable division. These methods include requesting that the presiding judge revoke or modify his or her decision, seeking an appeal of the final judgment or filing a motion to set aside the divorce decree. See O.C.G.A. §9-11-60(h); O.C.G.A. §5-6-35 et seq..
In Georgia, there is a period of time after a court enters its final order during which one of the parties can ask the court to reconsider its decision. This request may be made in the form of a motion to reconsider or a motion to vacate the judgment. Waldor v. Waldor, 217 Ga. 496 (1962). The motion to reconsider must be filed by the requesting party prior to the end of the term of court during which the judgment or order was rendered. Holloman v. Holloman, 228 Ga. 246 (1971). As the term periods differ, it is essential to consult a Georgia divorce lawyer immediately for more information on this topic if you are considering taking this step as this time frame is often limited. Although it is very rare that a court will grant a party’s request for reconsideration, a court may do so if the requesting party shows that the court made a mistake in understanding the facts of the case or in applying the law, or if the party claims that some new facts have arisen that make the original order unfair. Because time limits are usually very quick, it is important to consult one of our Atlanta divorce attorneys for more information specific to your case as soon as possible.
In addition to a motion to reconsider, a party seeking to modify portions of his or her divorce decree may also seek to appeal the judgment or he or she may file a motion to set aside the judgment. For more information on the domestic relations appellate process in Georgia, see our articles concerning appeals in Georgia divorce.
Fraud and duress are two other bases for seeking modification of a court order or settlement agreement concerning the equitable division of marital property. 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 so the likelihood of prevailing on a duress claim is limited, at best.