If you are unhappy with the property division as ordered by a court, you can and should seek an appeal. If the division does not follow the law, or the evidence before the court, you have only two options, with limited time, to correct the erroneous decision. Unlike child support and child custody issues, a property division order by a court is not modifiable. In other words, a property division is a final order.
(It is important to keep in mind that if you reach a settlement agreement, either through negotiations directly with your spouse, between your and your spouse’s attorney, or mediation, you are bound by that agreement and cannot appeal it, as part of the agreement is that you waive your right to appeal).
The first option is that you can file a Motion to Correct Error1, which asks the trial court to re-look at the case, and correct any error that occurred. Generally a Motion to Correct Error must be filed within thirty (30) days of the judgment or order. However, there are some exceptions which permit that a Motion to Correct Error may be filed beyond 30 days, but still within a reasonable time, such as fraud or new evidence that could not have been discovered prior to the hearing, and just recently became known. The Motion must specify exactly what error occurred. A good use of a Motion to Correct Error is one that seeks to correct a mathematical error or misapplication of the law.
The second option is that you can appeal a property division order. In order to effectuate an appeal, you MUST file a notice of appeal within 30 days of the final order.2
It is important to keep in mind that once a trial court issues its order on property division, that order is final. If no action is taken by filing either a Motion to Correct Error, or an Appeal, once the time has elapsed to do either option, the inequitable property division will stand, and cannot be modified or corrected later, no matter how unfair. (the only exception may be fraud and purposeful concealment of property owned, and this is a high burden to overcome, as simply not knowing that it is exists is not enough, you must show that there was no way you could find it because it was purposefully concealed). Therefore, it is very important to carefully review a final property division, and react appropriately and promptly if there has been some error by the trial court.
On the other hand, it is important to note that some property divisions take some time to accomplish, such as selling and dividing the equity in a martial residence. The trial court maintains jurisdiction to enforce it non-modifiable order.
We hope that you have found this information to be helpful in understanding property division in divorce and the need to appeal an erroneous order timely. This is not intended to be legal advice. If you have questions or concerns about your specific case, Dixon & Moseley, P.C. can help evaluate your specific case. This blog post was written by Attorney, Lori B. Schmeltzer.
