3. How to Change Court Orders
Correction of a clerical error can occur at any time and does not necessarily require a motion. Clerical errors include, for example, simple mathematical mistakes. Candidly, it is often more difficult than you might imagine to differentiate between a clerical error and a substantive error.
A motion for reconsideration asks the Court to take a second look and, of course, to reconsider its decision. It is filed with the judge that heard the original application, and therefore you will need to convince him or her that he or she was wrong (which is often a difficult task).
A motion to modify a final court order must be based on “changed circumstances.” The Court will evaluate your request by looking at the circumstances that existed when the order was entered and comparing them with present-day circumstances. Such motions apply only to custody, child support, and alimony orders.
A motion to vacate asks the Court to set aside a previous order under Court Rule 4:50. The rules regarding when the Court will set aside a prior order are strict. Further, different filing deadlines apply depending on the reason for which you are seeking relief.
An appeal is filed with the Appellate Division, and that means it will be heard by a panel of three judges who sit higher up than the judge who heard the original application. Judges of the Appellate Division have the authority to overrule the lower court.
Even after a Judgment of Divorce has been entered, you and your ex-spouse will probably have some remaining connections. For example, parents with young children can expect to have regular contact with their ex-spouses until (and sometimes after) those children are emancipated. Likewise, alimony and equitable distribution often require regular communication and cooperation between the parties long after the divorce has been finalized. For that reason, the methods of changing a Court Order are extremely important in the divorce and family law context. Of course, virtually any Court Order can be changed if the opposing party agrees to change it. But what if he or she refuses? Then, you have five potential options: (1) correction of a clerical error; (2) a motion for reconsideration; (3) a motion to modify based on changes circumstances; (4) a motion to vacate; and (5) an appeal.
Each one of these options has a substantial body of case law surrounding it. More importantly, some of them have very strict deadlines. For example, a motion for reconsideration must be filed within 20 days of service of the Court Order. The Rules of Court specifically prohibit a judge from enlarging that 20-day period. Don’t blow the deadline. Similarly, an appeal must be filed within 45 days of entry of the Order, although that period can be relaxed to some extent by the Appellate Division under appropriate circumstances. Nevertheless, the consequences of failing to act can be severe.
If you need to change a Court Order, you need to get informed and get moving as soon as possible.
Andrew M. Shaw, Esq. is the author of this New Jersey Divorce Guide and the founder of Shaw Divorce & Family Law LLC in Somerville, New Jersey.
ASSOCIATIONS & MEMBERSHIPS:
- American Bar Association - Family Law Section
- New Jersey State Bar Association – Family Law Section
- New Jersey State Bar Association – Appellate Practice Special Committee
- Somerset County Family Law Practice Committee
- MENSA International