Couple seeks to ‘un-divorce’
A couple in New Hampshire asked a judge to undo their divorce after they realized its financial implications.
Warner Norcross attorney Ric Roane said the judge’s decision not to vacate the divorce because it didn’t meet the requirements for a divorce to be set aside was an important one. He said the opposite decision could have created a troubling situation in the area of divorce law.
“The good news is the court didn’t grant it,” Roane said. “If it had, it would have caught the attention of a lot of divorce lawyers around the country.”
Roane said Michigan divorce law provides “extremely limited” grounds for setting aside a divorce decree. Clerical error, fraud or undisclosed assets are a few of the situations where a judge may rule to set aside a divorce decree.
“There are times when someone didn’t disclose an asset and in the future it came out,” he explained. “The judge has jurisdiction to reopen the divorce and reconsider including that asset and then fashioning a new property settlement.”
He emphasized that, in this type of situation, the judge is not undoing the divorce, however.
“Setting aside the divorce decree under the rules of procedure does not ‘un-divorce’ you,” Roane said. “It’s setting aside the judgment of divorce that either the judge granted or the parties consented to on very limited grounds.”
Rather than seeking to undo a divorce, Roane said the remedy for a couple that divorces and then later reconciles is to re-marry.
“I’ve had clients who were divorced and eventually got remarried,” he said.
He also emphasized the importance of getting the right legal advice during the divorce process to ensure you are doing what is best for yourself in the long term.
“This couple in New Hampshire, I can’t say for certain, but it looks like they had inadequate tax planning,” he said. “Part of any divorce case is proper tax planning.”
There are many tax consequences and tax impacts in virtually any divorce, even for a couple with a modest marital estate.
“If they have kids, there is a dependency exemption issue. If they split custody, they have to be careful in the number of overnights that each parent has with the child because it can qualify or disqualify a parent from being able to claim head of household status, which can have a big impact on their tax bill.”
Roane noted the New Hampshire case is a well-timed reminder for couples seeking a divorce because January is typically a time when divorce filings increase.
“January is the rush; it’s a big uptick in divorce filings,” he said.
He said couples should hire an attorney who really understands their marriage, marital estate and assets and can help them through the tax planning aspects of a divorce.