There are a few ways a divorce judgment can be changed.
Sometimes a divorce is granted by reason of one party’s failure to respond to court document or failure to appear in court. The judgment obtained in such circumstances is called a default judgment. Courts prefer to make ruling after hearing the merits of the case, rather than because of the simple fact that one party did not appear. Smith v. Daca Taxi, 222 A.D.2d 209, 634 N.Y.S.2d 476 (1st Dep't 1995).
One the other hands, courts must protect a litigant’s rights to a speedy determination of a law suit. Therefore good reasons must exists in order to vacate a default judgment.
Generally, a defaulting party who makes a motion to vacate the default judgment must show good reasons for his prior failure to respond or appear, and he needs to show that he has a meritorious defense to the underlying law suit.
Either party to a divorce judgment may appeal the decision of the trial court. Common reasons for appeal include (i) the trial court made a mistake in identifying the applicable law or in applying the law, and (ii) the trial court abused its discretion. It should be noted that most appeals of a divorce judgment are not granted.
Sometimes a party seeks to appeal a judgment of divorce issued pursuant to terms reached between the parties in an agreement. Appealing such a judgment is more difficult because it was issued based on what the parties have already agreed to, rather than what the court determines to be just. Absent fraud or duress which induced the aggrieved party into entering into the agreement, or the terms of the agreement being unenforceable, an appeal will likely fail.
When a party seeks modification of a divorce judgment, the issues involved most often are child custody, child support, alimony and visitation schedules. The motion to modify is usually filed with the Supreme Court where the divorce decree was issued. The motion may also be made at the Family in the county where one or both of the parties reside. Additionally, if there are children involved, the motion may also be made in the county where the children reside.
It should also be noted that only the Supreme Court has jurisdiction to grant a divorce and order the division of marital assets. Family courts do not have jurisdiction in those matters.
Additionally, parties do not have to pay court costs if the action is brought in a Family Court. Whereas the Supreme Court requires various fees to be paid at different stages of the lawsuit.
Another issue to keep in mind is that compared to the Supreme Court, procedures at the Family is more informal, and there are many resources available at the Family Court for self-representing parties.
In seeking to modify a divorce judgment, the party should be ready to show a substantial change in circumstance that justify a modification of a prior order. These change in circumstances may include loss of employment, relocation of a party, disability, remarriage or other reasons.
If a party seeks to lower his/her child support obligation for reason of loss employment, he/she should be ready to show that the loss of employment was involuntary, that he has since been actively searching for a new job, and that he was unable to secure a new job.
A party may seek to terminate alimony payment if the other party remarries.
A party may seek to change custody of the child if the custodial parent wants to relocate or becomes abusive or neglectful, endangering the welfare of the child.
A party may seek to raise the child support obligation of the non-custodial parent if he/she is earning substantially more than when the previous order of support was made.
Disclaimer: this article should not be construed as legal advice. Each legal case should be analyzed based on its own facts and circumstances.<- Previous Next ->