Tonight's How To post was written by our Marietta divorce attorney,
It's always best to get the terms of divorce you're entitled to
the first time around. But some times that's not possible because
one spouse hides assets, or commits fraud, and the other spouse has no
idea that they have been a victim.
If assets were hidden, or other fraud is discovered, a Final Judgment and
Divorce of Decree can be set aside. But it's not always an easy task
and there is a time limit for discovering a hidden asset or fraud.
A motion to set aside a judgment based on fraud can be properly considered
and granted outside the term of court in which the judgment was entered,
but must be brought within three years of the Final Judgment and Decree
In Georgia, fraud has five elements: (1) a false representation made by
Spouse A; (2) Spouse A must have intent or knowledge of wrongdoing; (3)
Spouse A must have an intent to induce Spouse B into action or to refrain
from acting; (4) Spouse B must have justifiably relied on the statement,
and (5) Spouse B must have suffered damage as a result. Hardy v. Gordon,
146 Ga. App. 656, 657 (1978).
Also, a Final Judgment and Decree of Divorce can be set aside for fraud
when one spouse fraudulently hides assets to prevent their equitable division
during the divorce. White v. White 274 Ga. 884 (2002).
Further, under Georgia law, fraud includes duress. The Supreme Court of
Georgia in Frost v. Frost 235 Ga. 672 (1975), defines duress as, "but
a species of fraud where one is induced contrary to one's will from
presenting a defense to suit."
For example, in the Frost case, the Court set aside the Final Decree of
Divorce where the wife had been threatened with the loss of her children
if she did not consent to the divorce, and where she signed the agreement
because her husband had the financial resources to carry out that threat.
In most cases before a person can attack the Judgment and Final Decree
of divorce they must give back all the benefits they accepted from the
judgment. That would include returning any spousal support or equitable
division of property awarded. Thompson v. Thompson, 288 Ga. 4 (2010)
While that is the general rule, the Supreme Court of Georgia has held has
held that a party guilty of fraud in procuring a divorce decree is not
entitled to assert that defense. White v. White 274 Ga. 884 (2002). The
Court in White upheld the trial's court ruling to set aside the alimony
and equitable division portions of the divorce decree despite Mrs. White's
complete failure to return the benefits she received under the divorce
decree because Mr. White was not entitled to an estoppel defense where
he was guilty of fraud in hiding assets during the divorce.
Going about attacking a Final Judgment and Decree of Divorce
is not simple but may be the only way to right a wrong. If you've discovered assets
hidden by an ex-spouse and you think you may have been the victim of fraud
or duress, it may be time to contact an experienced family law attorney
to attack the Judgment.
Remember, if you don't act fast you might lose the opportunity to right