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After divorce can an ex-spouse come back and try to get property already settled in divorce?

Murrieta, CA |

I have been divorced for 3 years and separated for 2 years prior to this. My ex-husband has filed a petition in family court for modification of child support and visitation. In addition, he is trying to retrieve 3 items which were settled in the divorce by claiming that they were gifts.

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Attorney answers 3


He is probably too late but that will depend on how your final judgment reads. It will also depend on the type of motion he filed: set aside, omitted asset or other. You will also want to consider having a face to face consultation with an attorney. That way you will be prepared to respond appropriately and can have them either represent you in court or help you prepare for court.

Michael is in San Jose, California and can be reached at 408-295-4232 or at Consultation fees, rates and retainers vary based on need and ability to pay.

Howard M Lewis

Howard M Lewis


always great advice


I am sorry that you are going through this. In most cases the division of property is not modifiable, however it does depend upon how your divorce/separation agreement was written and what the final judgement states. Further, it will depend upon how he drafted his action and what he is trying to accomplish. The courts are usually reluctant to open up personal property issues after judgement because in most cases the property could have already dissipated, etc.. Depending upon the value of what he is looking for you should factor that in to your decision to retain counsel, especially since he is looking to modify the CS and Visitation. Take care and hope that things work out.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.


If what you mean by "settled in the divorce" is that the 3 items were awarded to you in the divorce judgment, then whether or not your ex-husband has any chance of persuading the Court to set aside that portion of the judgment depends upon whether or not your husband can prove facts and a timeline that fall within Family Code Section 2122 (a)[fraud], (b)[perjury], (c)[duress], or (d)[mental incapacity]. It is too late for your ex-husband to qualify for relief under Section 2122 (e)[mistake made as to a stipulated judgment - such a motion had to be brought within one year of entry of judgment]. If those 3 items were not awarded to you in the judgment, your ex-husband could file a motion for adjudication of an unadjudicated asset, and you would need to adduce evidence that they were gifts to you. You would best consult with (or if the items are sufficiently valuable, retain) an experienced Family Law Attorney regarding your ex-husband's motion or order to show cause.

Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.

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