How to Overturn a Dissolution of Marriage Final Judgment in Florida

By Art Smithers


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A final judgment in a divorce case is the end result, whether you and your former spouse reached an amicable settlement or had a contested evidentiary hearing. If you are dissatisfied with the outcome of your divorce in Florida, there are several avenues you may take to overturn the final decree. Overturning an amicable settlement typically requires proof that you were mislead by your spouse. A contested divorce decree can be challenged either by a request for a new hearing or by appeal to a higher court. Deciding the proper course of action requires close examination of the facts and, most likely, the assistance of an experienced attorney.

Overturning an Amicable Divorce Decree

Overturning a final judgment of dissolution in Florida is difficult when the parties agreed on the terms and did not request an evidentiary hearing. In this type of case, the trial judge relies on the parties to resolve matters and generally does little more than enter a final judgment approving the agreement of the parties. It is difficult for you to change this type of final judgment because the court expects you to have been fully aware of the terms. However, an amicable divorce settlement can be overturned if you can establish that your spouse was not honest with you at the time of the agreement. For example, if you can show that your spouse has been engaging in behavior that might be dangerous to the well-being of your children, such as drug or alcohol abuse, and that you were unaware of this at the time you signed the agreement, you can ask the trial judge to set aside the final judgment. This type of request, however, has a deadline and must be made within one year of the time when you learned the facts supporting your claim.

Request a New Hearing

Most judges are reluctant to re-open a final divorce case because there is a justified belief that whatever the parties had to say should have been addressed during the final hearing. However, Florida law permits either party to ask for a new hearing if there is new evidence that would have made a difference in the outcome. This is true in cases of honest mistake, but it is especially true if the other party engaged in deceit or fraud. For example, if you discover that your ex-spouse has additional assets that were not disclosed at the hearing, this could provide grounds to set aside the final judgment. Be aware, however, that too much delay on your part in failing to notify the court may be fatal to your efforts at overturning the final judgment. Florida Rule of Civil Procedure 1.540(b) provides that newly discovered evidence must be disclosed with one year of discovery. This rule applies to any final judgment, whether it was the result of a contested hearing or an amicable settlement.

Change in Circumstances

Florida law permits you to ask a trial judge to change your divorce decree, regardless of when the final judgment was entered, if you can show that you or your former spouse have experienced a change in circumstances. Usually this refers to finances, and the type of change must be substantial. Examples would include being fired from your job or having a serious health problem that affects your earnings. An increase in either party's income might also qualify, but again, it must be substantial. Finally, if you have been ordered to pay alimony and your spouse remarries, Section 61.14 of the Florida Statutes authorizes the trial court to modify the alimony award upon a showing that the new relationship is a "supportive" one. Any of these circumstances provide grounds for modification of a final judgment of dissolution.

Ask the Appellate Court

Sometimes the trial court makes an error and refuses to correct it. When this happens, the only alternative is to ask the appellate court for relief. This process requires filing a notice of appeal with the trial court and the preparation of a transcript of the hearing and written argument which you will submit to the appellate court. Be aware that there is a strict filing deadline that requires you to file your notice of appeal within 30 days of the final judgment. The appellate court will typically only review arguments that were first presented to the trial court. Only the most serious of claims (called "fundamental error") can be considered for the first time on appeal, so be aware that you will likely not be entitled to relief unless you can show that your claim was denied by the lower court. The trial court has broad discretion to determine the facts of your case and the appellate court is not likely to find that the lower court erred in how it interpreted the facts. You are far more likely to win if you can show that the trial court made an error of law. Typical examples might include an error in the amount of child support awarded or whether a piece of property or bank account is a marital asset subject to division. Legal argument in this specialized field can be quite complex and most cases will require the advice of an experienced appellate lawyer.