Reversing a Georgia Divorce Best answer on the web

Posted in: darrelrussell.com edit
07 Jan 2009
  • BACKGROUND: My husband was in a common law mariage to his firt wife. They obtained a legal Georgia divorce. He was without representation at the time. He agreed, because he believed that was the law, that he had to pay half his income for the one child. He has since obtained an attorney now who found that the courts varied from the guidelines, and never counseled him on it (As they should have) nor did they put in the decree why it exceeded the guidelines.
    The divorce decree states 17 - 23% and the decree states, no exceptional circumstances were found. Yet, they ordered him to pay 50%.
    My husbands attorney is now challenging that Settlement agreement and petitioning to have it set aside.
    QUESTION: If they set aside the divorce agreement (reverse it), and issue a new one with modifications, does that mean the divorce is reveresed and he is still married to his ex?
    My fear is that when they void that agreement, they void the divorce, therefore making him married to her again, and he and I (Who had a complete wedding and legally married) will not be married anymore.
    Thanks for any help


  • While THE TERMS of your diviorce AGREEMENT may come into question or be set aside, I know of no legal mechanism in any of the 50 states by which a divorce is "undone" to the extent that the former spouse are effectively remarried. Keep in mind that the terms of the divorce (the right and legal expectations and obligations of the divorced parties) is not the same thing as the DECREE which effectively ended the marriage. In fact, terms of a divorce may change MANY times over the years and the court can set aside earlier decisions at any time in favor of newer, fairer or otherwise modified agreements. This in no way impacts the divorce itself though, does it? See what I mean? The terms change but the divorce remains intact and unaffected (as is, obviously, any subsequent marriage).
    By policy we aren't permitted to provide "actual" legal advice but in layman's terms this is the bottom line in most cases. Let me know if this answers your question.
    tutuzdad-ga


  • This is another case in which only a good attorney in that state can give you a definite 100% certain answer.
    However, in most states I can assure you that the divorce is not cancelled at all. A legal action to cancel a divorce itself would be very very rare, once the final order is issued and I don't remember ever seeing such a ruling issued. There is a legal term "res judicata" which is latin for "let the ruling rest" and it would be a major uphill battle to cancel a divorce itself, but more so when a later marriage has taken place. I cannot even imagine it in the United States.
    What he is doing is more like a modification of the financial part of the divorce order. This is done all the time, usually of course, to increase the payout, and can be filed as long as there is still money being transferred under the court order. (In some cases, after the order expires, such as child support which stops when the child is an adult, but someone wants the man to pay for college expenses. It gets really weird to be forced to pay child support for a legal adult...) But, as you can see, it is also used when it is fair and just to reduce a payout.
    So, as a general statement, no, the divorce will not be cancelled. In fact, the usual title of such a filing is a request for modification of (whatever title is used in that state for the item under discussion, probably order to pay child support.)
    So, do not panic. All is well. You will not be turned into a loose woman no matter what the court ruling is. :)
    Still, since he is paying an attorney, it should not cost extra for him to tell the attorney of your concern, but the attorney may laugh at the question.