How to Remove a Provision in a Divorce

by Michael Butler

If you believe that a court made a mistake or ruled incorrectly in a divorce, you might be able to have a provision removed from the divorce order. Depending on the nature of the error, you can use different procedures to remove the provision, including appeals, motions to modify and nunc pro tunc.

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State Law

Divorce laws and procedures are determined by state law. Most states have similar procedures. However, they differ in details. For example, if you want to appeal a divorce decision, you must file the appeal within a statutory number of days that varies among states. To determine the best option that applies to your situation and that is available in your state, you need to look at your state's laws. You can also consult with a local attorney to discuss your options and the available remedies.

Appeals

In most cases, you can appeal a trial court's decision to a higher court. However, you need grounds to appeal under the laws of your state. Normally, you can appeal if the judge made a mistake in applying the law. For example, if the provision you want removed from your divorce is a misapplication of the law, you can ask a higher court to order the provision removed. Appellate courts do not normally take a fresh look at the evidence. The higher court will defer to the lower court's findings of the facts in your case, unless the lower court was completely unreasonable.

Motion to Modify

A motion to modify is filed with the same court that made the initial divorce order. The motion is a request to have that court revisit and modify its previous order. States have different standards for when a court can modify its prior order. Generally, there must be some change of circumstances from the time of the original order for a court to modify a prior order. If the provision you want removed from your divorce is now impossible or unjust because of a change in circumstances, a motion to modify might be your best option.

Nunc Pro Tunc

Courts sometimes make clerical errors in their orders. For example, a provision in the order granting your divorce might be inaccurate because the court did not make that ruling in its oral announcement of judgment. Courts can fix their clerical errors by issuing a nunc pro tunc order. The new order replaces the previous order that was in error. If you find a mistaken provision in your divorce, you can usually file a motion for a nunc pro tunc order. If both parties agree, they can file a joint motion.