Setting Aside or Modifying Divorce Decree in Arizona
In Arizona, Rule 85 of the Arizona Rules of Family Law Procedure permits a party to set aside a final Decree of Dissolution of Marriage for several reasons, so long as the Motion to Set Aside the Decree of Dissolution of Marriage is filed within a reasonable time and, if being set aside for mistake, inadvertence, surprise, excusable neglect, newly discovered evidence which by due diligence be discovered before, or fraud, misrepresentation, or other misconduct of the other party is filed no later than six months after the entry of the Decree of Dissolution of Marriage.
The six-month limitation does not apply to a Motion to Set Aside based on a void Decree, the judgment has been released, satisfied, or discharged, or any other reasons justifying relief from the Decree.
The Georgia Supreme Court in the case of Lockamy v. Lockamy addressed whether the wife could set aside her Divorce Decree to be awarded alimony when it was later discovered she would not be able to receive her 40% of Husband’s military retirement pay. The American Bar Association said the following about the case of Lockamy v. Lockamy No. S17A0966:
After the entry of a divorce decree that incorporated a settlement agreement granting the wife 40% of the husband’s military retirement benefits, and that awarded such benefits to wife as part of the equitable division of marital property, the Navy determined that the benefits in question were actually disability benefits that could not be divided and the husband stopped making the payments. Six years later, the wife filed a motion to reform the divorce decree to provide for permanent periodic alimony instead. The Georgia Supreme Court held that the trial court lacked authority to modify the divorce decree so as to award former wife permanent periodic alimony, even if the parties’ intent that the wife receive a portion of the husband’s Navy retirement benefits as part of the equitable division of marital property was thwarted by the Navy’s determination that the benefits in question were actually disability benefits that could not be divided, because the original divorce decree did not award wife alimony, which precluded her from seeking to modify such an award, and wife failed to seek relief from the decree within the three year time period for filing a motion for relief from judgment.
Although the Georgia Supreme Court case cannot be cited as authority in Arizona, it does demonstrate what can happen when a military retirement is later converted to military disability pay which deprived Wife of receiving what the parties originally intended in their Divorce Decree.
Chris Hildebrand wrote this article to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.