Modification of Property Settlement

While a court may modify parenting, maintenance or child support, generally, property settlements are not modifiable after a decree enters. If one spouse believes he got a bad deal, he’s usually stuck with it.

Finality of Judgments

C.R.S. 14-10-122(1)(a), which provides for the modification of decrees, provides: “The provisions as to property disposition may not be revoked or modified unless the court finds the existence of conditions that justify the reopening of a judgment.” (Emphasis added).

The italicized language means that the spouse seeking to reopen the judgment has met one of the very specific requirements of C.R.C.P. 60(b), most of which have a 6-month time limit.

“Once a separation agreement is incorporated into a decree of dissolution, it becomes a part of the decree and cannot be modified as to the property distribution except by obtaining relief from judgment in accordance with the rules of civil procedure.” Camack v. Camack, 62 P.3d 1097 (Colo. App. 2002).

And even when trial courts have been persuaded to reopen judgments, appellate courts often reverse. “Under Colorado law, there is no continuing jurisdiction in our divorce courts to modify a final decree insofar as it pertains to property rights.” Hedlund v. Hedlund, 491 P.2d 77 (Colo. App. 1971).

And this rules applies to the property settlement in a dissolution case. “Once property division provisions of a separation agreement have been incorporated into a dissolution of marriage decree, they may not be set aside or modified unless the conditions of C.R.C.P. 60 are met.” In re: Marriage of Seely, 689 P.2d 1154 (Colo. App. 1984).

Mistake

C.R.C.P. 60(b)(1) allows a party to seek to reopen the decree in cases of “(1) Mistake, inadvertence, surprise, or excusable neglect”. Such a motion must be filed within 182 days of the decree.

Examples of a mistake may be that both parties used an erroneous value for an asset, or omitted an asset entirely from the division (i.e. they forgot about it). It does not apply to your own mistakes. “[O]ne's own carelessness and negligence does not amount to excusable neglect.” McElvaney v. Batley, 824 P.2d 73 (Colo. App. 1991).

Be careful selecting your lawyer, because this prohibition applies no matter how gross the negligence of counsel. Fukutomi v. Siegel, 785 P.2d 147 (Colo. App. 1989).

Fraud

C.R.C.P. 60(b)(2) allows a party to seek to reopen the decree in cases of “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” As with mistake, a motion must alleging fraud must be filed within 182 days of the decree. Note, however, that fraudulent concealment of an asset would probably trigger C.R.C.P. 16.2(e)(10) which, .as discussed below, has a five year limit.

Any Other Reason

C.R.C.P. 60(b)(5) allows a party to seek to reopen a decree for “any other reason justifying relief from the operation of the judgment.” Such a motion must be filed within a “reasonable time” - there is no 182-day limit.

This “catch-all” provision is used very rarely - I’m not sure I’ve ever seen a court use this provision to reopen a decree. And there are a series of appellate rulings in Colorado emphasizing how rarely this provision should be used, that it does not apply to an argument that would be covered by a different C.R.C.P. 60(b) provision, and how extraordinary the circumstances must be.

The rule “is a residuary clause, covering extreme situations not covered by the preceding clauses in the rule.” Atlas Constr. Co. v. District Court, 589 P.2d 953 (Colo. 1979).

“[T]o prevent this residuary provision from swallowing the enumerated reasons and subverting the principle of finality, it has been construed to apply only to situations not covered by the enumerated provisions and only in extreme situations or extraordinary circumstances.” Davidson v. McClellan, 16 P.3d 233 (Colo. 2001).

“Invocation of the rule demands scrupulous consideration of strong policies favoring finality of judgments.” E.B. Jones Constr. Co. v. City & Cty. Of Denver, 717 P.2d 1009 (1986)

Concealed or Misstated Asset

There is a separate rule which allows one spouse to reopen a property settlement for up to five years when the other spouse omitted or misstated his/her assets. C.R.C.P. 16.2(2)(1) provides:

“As set forth in this section, it is the duty of parties to an action for decree of dissolution of marriage, legal separation, or invalidity of marriage, to provide full disclosure of all material assets and liabilities. If the disclosure contains misstatements or omissions, the court shall retain jurisdiction after the entry of a final decree or judgment for a period of 5 years to allocate material assets or liabilities, the omission or non-disclosure of which materially affects the division of assets and liabilities.”

Clerical Mistake

This is not common, but when the written order simply contains a clerical error, it can be corrected at any time.

C.R.C.P. 60(a) provides: “Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.”

Examples of what may constitute a clerical error:

• A math error when adding up the values of the assets. In re: Marriage of Burford, 26 P.3d 550 (Colo. App. 2001). Contrast this to what is not a clerical error: “the court should have accepted my value for the house.”
• Misidentifying an asset, such getting the make of vehicle wrong, or juxtaposing two numbers in an account. or juxtaposing two numbers. Weinstein v. Park Funding Corp., 879 P.2d 462 (Colo. App. 1994). This does not include “the judge should have given me this account instead of that one.”
• The judge issued an order what was not included in the written order. In re: Marriage of Cespedes, 895 P.2d 1172 (Colo. App. 1995).

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