HOW TO RE-OPEN A DIVORCE CASE AND SET ASIDE A DIVORCE JUDGMENT
Usually, after a judge signs a divorce judgment, it’s res judicata and you can’t go back and mess with stuff. But with divorce and family law cases, nothing is every really res judicata (especially support and alimony matters). That is why the judgment usually says something to the effect of “the family court and supreme court shall retain concurrent jurisdiction,” because you can almost always go back and mess with stuff if there are changed circumstances–such as the discovery of new evidence, or the uncovering of fraud (intentional or constructive, intrinsic or extrinsic). Financial fraud is the main type and this can take many forms. It seems that everyday people figure out new ways to defraud their spouses in divorce cases. Have you heard of bitcoins, for example? This is a way to hide assets electronically and lots of legal professionals are starting to talk about it.
Nevertheless, the courts expect parties in a divorce action to perform what is called DUE DILIGIENCE during the divorce proceedings, and not after the judgment, and to uncover the fraud BEFORE the judgment is signed.
Once a judgment is signed and the statute of limitations has run, you and your divorce lawyer will normally not be able to vacate a divorce judgment due to fraud. There has to be a finality to things at some point, and so often times, even if you find really good evidence that would have changed the outcome of your divorce, you may find that the court says you are guilty of “laches” and that your action is time-barred as a result. The only saving grace is that the statute of limitations usually starts to run at the time you discovered the fraud or perjury, in most cases, so that should help at least some aggrieved parties to get their case reopened. But don’t hold your breath. Most aggrieved parties who discover fraud later are not allowed to reopen their cases after the statute of limitations has run, unless you can demonstrate that all during the trial phase, you were trying to uncover the fraud, but you just weren’t able to because your spouse was just better at their fraud than you were at uncovering it. The conventional wisdom seems to be, why should a frauster be allowed to benefit from his or her fraud?
What is the statue of limitations for fraud and perjury? I am going to go out on a limb here and say, it’s different in every state. That’s what it looks like to me. And when the statute begins to run varies from state to state as well. Some states hold that tolling begins at discovery of the fraud. Others begin when the fraud occurred. But even if fraud is alleged, at some point, a claim will be “time barred.” You can’t bring actions for fraud into perpetuity – unless you commit the fraud against the court itself. Take a state like Vermont, which, even though there is a catch all phrase that goes something like this:
Rule 60(b)(6), which provides that relief may be granted for “any other
reason justifying relief from the operation of judgment.” The rule
explicitly provides that motions based on the catch-all provision “shall be
made within a reasonable period of time.” V.R.C.P. 60(b). The rule also
states that there is no limit to “the power of a court to entertain an
independent action to relieve a party from a judgment . . . or to set aside
a judgment for fraud upon the court.” Godin v. Godin
there is still a time limit. You can’t successfully move to set aside the judgement after a certain point. This is true in Vermont and most, if not all, other states in the Union. What is the cut off? I think it depends. The court seems to have a lot of discretion, depending on the circumstances of the case.
Generally speaking, to re-open the divorce case, you have to show that there was fraud and that as a result of the fraud, you were injured financially. In Connecticut, just as an example (I was talking to a Connecticut divorcee about this so it’s on the cerebral cortex, btw, check out this blog on divorce in Connecticut:http://www.divorceinconnecticut.blogspot.com/ ) you usually only have four months to try to set aside a divorce judgment and get a new trial. Except if there is fraud. The seminal case on that is Billington v. Billington.
Billington v. Billington, 220 Conn. 212, 218, 595 A.2d 1377 (1991). In Varley v. Varley, supra,[180 Conn. 1,428 A.2d 317 (1980] we imposed four limitations on the granting of relief from a marital judgment secured by fraud: „(1) There must have been no laches or unreasonable delay by the injured party after the fraud was discovered. (2) There must have been diligence in the original action, that is, diligence in trying to discover and expose the fraud. (3) There must be clear proof of the perjury or fraud. (4) There must be a substantial likelihood that the result of the new trial will
27-11 be different.
One helpful thing to look at is whether your settlement agreement was incorporated into the judgment but not merged into the judgment. If it is not merged, then you can probably bring a separate action even after the statute of limitations have run, for breach of contract, which typically has a longer statute of limitations than fraud.
One tip for fellow counsels is, going forward, especially in high asset cases, the settlement agreement should include some kind of language that goes to the issue of fraud and concealment. Such that “upon discovery that property was concealed and not rightfully included in the marital estate, the aggrieved party shall receive said property as a remedy.” Or something less cumbersome, but you get the drift. You have to anticipate the fraud to abolish the mischief in divorce cases sometimes. Otherwise, aggrieved parties are left holding the proverbial bag.