Sometimes a marriage may last many years, and sometimes divorces do too. Normally, if there is a mistake in the final decree, such as failure to decide an issue or misapplication of the law, the preferred remedy is filing a Motion to Correct Errors or taking an appeal to the Indiana Court of Appeals within thirty days. If you do not, you may be stuck with the problem. Nevertheless, sometimes months or years later a party discovers a major problem with the decree1 or some fraud. What do you do? Well, Indiana’s laws are structured to provide due process and fundamental fairness which is where Indiana Trial Rule 60(B) comes in; it might allow you to challenge or set aside a Decree to correct certain errors. The rule has many provisions that might apply (or not) so it is important to clearly identify the issue and any relief under Trial Rule 60(B). The blog covers five more or less common examples of circumstances in which the filing of a Trial Rule 60(B) Motion provide relief for a problematic divorce decree.2
The first is where Decree fails to divide all personal property acquired by the parties. For example, you and your spouse own a third vehicle that is not mentioned in the Decree. If this is not addressed, this vehicle is in legal limbo and it will become a problem at some point. However, a Trial Rule 60(B) Motion may be your only tool to try to get the court to decide to award the vehicle and expenses associated with it. Nevertheless, Trial Rule 60(B) is not necessarily applicable if this was just attributable to a sloppy presentation of evidence. The reason is that because of the rule of finality, whereby final orders are favored to stand and not be challenged later.
You might have guessed the second issue—real property (land with or without buildings). A problem sometimes emerges later when former spouses have owned multiple houses during the marriage, whether for personal use or rental income. The houses have been divided, but the Decree does not address the rental income and expenses. A home might even be omitted. Even if your spouse was awarded the house, you may be entitled to rental income brought in during the pendency of the divorce. If this cannot be discovered in time for an appeal or was misrepresented, the filing of a Trial Rule 60(B) Motion may be a helpful (and only) tool to try to remedy this issue. A trial court loses jurisdiction to re-divide or considers new property issues thirty days after a divorce in the absence of an appeal. Again, Trial Rule 60(B) is narrow in application, but can sometimes provide a remedy with the right legal theory. There numerous situations where this rule might provide relief where there is no other relief.
A common third issue that arises related to mortgages. Sometimes these may be addressed by a trial court’s contempt powers to enforce the decree’s provisions, meaning it still has jurisdiction. Where that is not the case, there are many situations that arise with mortgages after the time to appeal passes. For instance, you and your former spouse obtained a second mortgage on the marital residence, but the debt is not reflected in the Decree. At some point in time, someone may recognize this (such as the person who continues to pay it) and need relief. In the right circumstances, martial debts/obligations not addressed at trial that come to light later may be addressed by Trial Rule 60(B) motion. However, in all cases, the cost and uncertainty of the litigation must be considered against the potential for relief.
The fourth issue that is particularly problematic during the marriage and post-divorce relates to retirement accounts. Retirement and 401(K) accounts are included as marital property to be divided, whether held in one spouse’s name or jointly. Even if these accounts are apportioned, they are sophisticated investments in most cases and may have issues that are never addressed after the divorce, such as getting a QDRO in place. Years later, a divorce court may not want to exercise its enforcement powers to address the fact of a failure to implement a QDRO. Or a retirement account may have been omitted or not disclosed. Again, while Trial Rule 60(B) has some significant limits, and is not a substitute for a direct appeal after trial, it may provide relief in some situations.
Child-related issues that could arise post-decree are innumerable. While uncommon, there may be a situation where the Trial Rule 60(B) would be the key for relief, such as if was discovered a spouse fraudulently misstated his/her weekly gross for child support purposes. If the statute providing for modification was not available to provide a remedy (they have limits to avoid continual litigation for support modification), then Trial Rule 60(B) might be an option for relief. The trial rules are very flexible to address any situation that is unjust so long as it properly balances this situation and relief against many other rules and policies, such as that a decision is in a child’s best interests.
If you believe a mistake or error has been made in your Divorce Decree, and there is not otherwise a remedy, such as an appeal, a Trial Rule 60(B) may be the right avenue for relief. This rule is technical and limited. but is commonly used in post-divorce decree situations where no other relief is available. Should you consider this with your counsel? Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana and understand the complicated transaction that most divorces represent in today’s world. If no other remedy is available to correct the shortfall in a divorce decree, a Trial Rule 60(B) may be worth considering. The broader takeaway is the laws are flexible to provide justice but balanced against the need to have a case finally resolved. This blog post is written by Ciyou & Dixon, P.C. advocates who handle all facets of divorce and paternity cases throughout the state. This blog is not intended as specific legal advice or a solicitation for services. It is an advertisement.
- The divorce order may be titled “Order”, “Decree”, “Special Findings”, et cetera. This is unimportant so long as it is the document that does divorce the parties, divides the property, and address custody issues if there are children.
- Trial Rule 60(B) also provides relief in some cases where there has been a fraud that impacts the divorce settlement that is discovered after the final order is issued.