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Property Division in Divorce - Is It Final?

While some aspects of a divorce decree are modifiable at later times under specific, limited circumstances (alimony/maintenance, the allocation of parenting time and child support), property division is nearly sacrosanct.  This point was recently brought home once again in a New York court, where a divorce litigant made an initial marital settlement agreement based on his belief that the millions of dollars he had invested in one of Ponzi fraudster Bernie Madoff's bogus funds were safe.  Of course, like may others, he learned later that he had been taken, and that nearly all of his investments were worthless. At the lower levels, the New York courts agreed with him, but this was eventually reversed on appeal in an opinion by the New York Court of Appeals.

Kentucky views these situations much the same way.  As a long term practitioner, I've been involved in many motions to set aside decrees; some I've had to defend, others I've had to unwind.  The guiding concepts that govern these unusual pieces of litigation involve a complex balance of factors which arise from the answers to the following general questions:

1.  Was one party induced to enter the agreement under duress?

2.  Was the party seeking to undo the agreement emotionally competent to enter the agreement at the time it was executed?

3. Was a material asset hidden or concealed from the other at the time of execution, and could it have been discovered easily prior to the execution of the agreement?

4.  Has a great length of time elapsed since execution of the agreement, and is there a reason why the attempt could not have been made sooner?

5.  If there has been a misrepresentation of value of an asset, did that misrepresentation originate from the other divorce litigant, or was it an innocent misrepresentation based on either the active fraud or negligence of a third party? 

Precision in predicting how a court will rule  on a request to undo a final order is an impossibility - evidence on these issues tends to be murky, there is typically a great deal of emotional turmoil surrounding the proceedings, and inevitably, they don't involve the same attorneys who crafted the original agreement (inasmuch as one party is angry at prior counsel, and the other counsel is a witness).  Obviously, while it is important to get everything right the first time, sometimes these situations will arise, and it is important to choose seasoned professionals to assess the situation in order to provide sound guidance.

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