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Attacking the Divorce Decree - How to Right the Wrong

Tonight's How To post was written by our Marietta divorce attorney, Jeannine Lowery.

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 of Divorce.

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 the wrong.

Jeannine Lowery

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