CAN I CHANGE THE PROPERTY DIVISION PORTION OF A DIVORCE DECREE?
Dec. 18, 2017
The property division portion of a divorce decree is generally not modifiable absent fraud or some other highly unusual circumstance. KRS 403.250(1) states in relevant part: “The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.”
In a recent unpublished opinion (2017-2014-ca-000748-mr), the Court of Appeals laid out the analysis for reopening of a judgment under the laws of this state:
“A settlement agreement may be set aside as unconscionable if the family court determines that it is manifestly unfair or unreasonable. McGowan v. McGowan, 663 S.W.2d 219, 222 (Ky. App. 1983) (citations omitted).
It may also “be set aside if it results from fraud, undue influence, or overreaching.” Id.; Money v. Money, 297 S.W.3d 69, 72 (Ky. App. 2009). The party challenging the agreement must carry a “definite and substantial” burden of proof. Peterson, 583 S.W.2d at 711.
The family court is in the best position to weigh the evidence and determine if a settlement agreement is unconscionable or if it resulted from duress, undue influence, or overreaching. Shraberg v. Shraberg, 939 S.W.2d 300, 333 (Ky. 1997).”
To establish …
“Duress, there must be “an actual or threatened violation or restraint on a man’s person, contrary to law, to compel him to enter into a contract or to discharge one.” Boatwright v. Walker, 715 S.W.2d 237, 243 (Ky. App. 1986) (citation omitted).
Fraud) “consists in successful deception intentionally practiced to induce another to part with property or some legal right. In other words, there must be some material misrepresentation made with the knowledge that it was false and with the intent that it be acted upon.” Id. (Citations omitted).
Undue influence generally “must be of sufficient force to destroy the free agency of the grantor and to constrain him to do, against his will, that which he would otherwise have refused to do.” Mays v. Porter, 398 S.W.3d 454, 458 (Ky. App. 2013) (citation omitted).”
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