Reconsideration of Divorce Decree

By Michael Butler

In some cases, you can ask the same court that issued your divorce decree to reconsider its opinion by filing a motion for reconsideration, which is often called a motion for relief from judgment or order. This motion is not appropriate if you merely disagree with the court's order. You should only use it when the court has made some kind of mistake.

Timing

From state to state, the law differs with regard to how long you have to file a motion for reconsideration. Some do not even mention the motion in their statutes, but allow it as a matter of convention. Courts also differ in how they view the statutory time frame to file the motion. Some courts view it as a set number of days since you received a written order. Others see it as the number of days since your order was announced in court. If you are thinking of filing for reconsideration, speak with an attorney in your area who is familiar with local court procedures as soon as possible. Local attorneys can tell you how the court interprets your state's statutes.

Reasons for Reconsideration

The laws also differ from state to state as to what you need to show for a judge to reconsider an order. The standard is often described in your state's rules of civil procedure. However, prior court decisions often interpret and add to these standards, so you should ask a local attorney how courts in your state interpret the law. Generally, states allow motions for reconsideration when the original motion has an error, such as a miscalculation, when new evidence has been discovered -- that is, evidence that was not available at a trial -- or when the court has made a mistake of law. In some states, you are required to file a motion for reconsideration before you can appeal, based on certain factors. For example, Virginia requires that you file a motion for reconsideration before you can appeal a domestic relations case on grounds the judge made a mistake of law.

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What a Judge Cannot Reconsider

Motions for reconsideration are not a chance to have the court reweigh the same evidence it weighed in making its original ruling. The judge who issued the divorce decree will hear the motion for reconsideration, so requesting reconsideration because you disagree with the judge's opinion is unlikely to succeed. However, if you must file the motion to preserve your right to appeal, do so without regard to whether the judge will rule in your favor, if you plan on appealing.

Other Options

In states that do not require a motion for reconsideration before an appeal, you can appeal the court's decision in your divorce if the judge made a mistake of law. You generally cannot appeal if you believe the judge made a mistake when weighing the evidence and facts of your case, because appellate courts give great deference to trial courts' factual determinations, as long as they are reasonable. Courts generally allow motions to change or modify custody, child support and alimony, as circumstances change from the time of the original order. Courts sometimes have broad equitable powers to grant relief from overly burdensome prior court orders. Speak with a licensed attorney about the options available in your state.

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References

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