Provisions of a final judgment and decree of divorce typically settle all issues regarding division of the spouses’ assets, child custody, child support, and alimony. Whether and to what extent either spouse can modify those provisions after entry of a final judgment are the most common questions raised by domestic clients after divorce.
A superior court judge retains the greatest ability to modify his/her final judgment and decree of divorce during the term of the judgment’s entry. In Georgia, a superior court’s calendar year is divided into “terms.”(1) A court remains free to modify any provision of its judgment, for any meritorious reason, provided that proceedings seeking modification begin during the same term as the entry of the judgment.(2) Thus, for instance, a judgment entered in January, during a term which runs from the January to February, is modifiable at the judge’s discretion as long as a party moves to set aside or modify that judgment before March.
After expiration of a judgment’s term of entry, a court has no ability to modify or amend the judgment in any matter of substance or in any matter affecting the merits, unless authorized by statute. A court can only interpret and clarify the provisions of its prior judgment.(3)
Specific statutory authority exists for modification of a divorce decree’s provisions regarding child custody, child support, and alimony.(4) A court can modify a prior child custody determination upon application showing a change in any material conditions or circumstances of a party or the child.(5) A court can modify a prior child support order upon the filing of a petition showing a substantial change in either parent’s income and financial status or the needs of the child.(6) A court can modify a prior alimony award upon the filing of a petition by either former spouse showing a change in the income and financial status of either former spouse.(7)
Unlike child custody, alimony, and child support, no specific statute authorizes the modification of a final decree’s provisions for the equitable division of the parties’ marital assets.(8) Thus, a former spouse who feels cheated by the court’s division of the parties’ real or personal property, or who believes that the court failed to include and allocate certain marital assets, ordinarily cannot challenge those aspects of the final decree after its term entry. Generally speaking, a party will be able to seek modification of a final decree’s provisions for equitable division only by complying with the statutory requisites and limited deadlines for obtaining a new trial or obtaining relief from a final judgment.(9) Except in extraordinary cases, applications for new trials must be brought within thirty days of entry of the final judgments.(10) Motions to set aside final judgments for fraud, accident, mistake, or the acts of the adverse party, must be brought within three years of entry of the judgments.(11)
(1) O.C.G.A. § 15-6-3.
(2) Ammons v. Bolick, 233 Ga. 324, 325(1), 210 S.E.2d 796 (1974); Goode v. O’Neal, Banks & Associates, Inc., 165 Ga.App. 162, 300 S.E.2d 191 (1983).
(3) Floyd v. Floyd, 291 Ga. 605, 732 S.E.2d 258 (2012); Tremble v. Tremble, 288 Ga. 666, 668(1), 706 S.E.2d 453 (2011); Leggette v. Leggette, 286 Ga. 323-324(1), 687 S.E.2d 585 (2009).
(4) O.C.G.A. §§ 19-9-3(b), 19-6-15(k), and 19-6-19 through 19-6-22.
(5) O.C.G.A. § 19-9-3(b).
(6) O.C.G.A. §19-6-15(k).
(7) O.C.G.A. § 19-6-19(a).
(8) Holler v. Holler, 257 Ga. 27, 27-28, 354 S.E.2d 140 (1987).
(9) O.C.G.A. §§ 5-5-1 et seq.; and O.C.G.A. § 9-11-60.
(10) O.C.G.A. § 5-5-40(a).
(11) O.C.G.A. § 9-11-60(d) and (f).