How to File for Retroactive Divorce

By Kelly Mroz

A retroactive divorce is called divorce nunc pro tunc. The Latin literally means "now for then"; that is, the court will correct now what should have been done correctly earlier. State law typically allows such a decree only when the court meant to enter a divorce but, due to clerical errors, the divorce was not actually entered. In this situation, the court can correct the error. The official date for the divorce can be made retroactive to the date it should have been entered.

A retroactive divorce is called divorce nunc pro tunc. The Latin literally means "now for then"; that is, the court will correct now what should have been done correctly earlier. State law typically allows such a decree only when the court meant to enter a divorce but, due to clerical errors, the divorce was not actually entered. In this situation, the court can correct the error. The official date for the divorce can be made retroactive to the date it should have been entered.

Step 1

Consult an attorney or check the laws of your state to assess if and when a nunc pro tunc divorce is available. Divorce laws differ by state.

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Step 2

Find the error. To have an action in divorce nunc pro tunc, there must have been a clerical error. The error may be that the order was accidentally not signed by the judge, not entered as an order, or not properly filed or recorded. Review the documents on file with the courthouse to see if the divorce decree was filed, has the correct date and has the judge's signature. Ask the records clerk, who was responsible for filing the document correctly, for help in identifying the error. If neither you nor the clerk is able to locate the clerical error, consult with an attorney.

Step 3

Prepare and file a motion, a formal request that states the problem and allows you to get a hearing date. This document is filed with the court and typically must be served on the other party.

Step 4

Appear at the scheduled hearing. Both parties have the opportunity at this time to state their positions to the court and present evidence to support their arguments. Explain that you want the divorce decree issued bearing the original date it would have been entered if not for the error. Present the evidence you gathered to show that the court made an error when attempting to enter the divorce earlier.

Step 5

Receive the judge's decision. He may issue his decision at the end of the court hearing or take the matter under advisement and mail it later.

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References

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