By Sara Pitcher
Cordell & Cordell Divorce Lawyer
Res judicata is a Latin term meaning “a thing adjudicated.”
This refers to an issue that has been definitely settled by judicial decision. This bars the same parties from litigating a second lawsuit on the same claim or any other claim arising from the same transaction that could have been but was not raised in the first suit.
There are three essential elements for res judicata:
1.) An earlier decision on the issue;
2.) A final judgment on the merits; and
3.) The involvement of the same parties or parties in privity with the original parties.
The impact of res judicata in family law may be perceived differently than in other areas of law.
Res Judicata and Family Law
The reason for this is that many issues in family law are not final, such as parenting time orders, child custody orders, child support, and even spousal maintenance. These are all areas that can be modified upon a showing of a substantial change in circumstances.
As a result, these issues are not barred by res judicata.
Property Division and Res Judicata
Some areas of family law, however, are final. Orders regarding property division are not modifiable without a showing of fraud, duress, mistake, or similar showing. This is important because once an order is entered for property division, the issue cannot be re-opened without an agreement of the parties or a showing of fraud, duress, mistake, or newly discovered evidence.
Newly discovered evidence may be hard to prove as you must show that the information was not known or available to you at the time of the hearing and you must file your Motion within 30 days of discovering the evidence, at least according to my state’s divorce laws. If not, you will still be barred from attempting to introduce this evidence.
The purpose of this rule is to protect the parties to the case. If property issues could be re-opened indefinitely, then the parties would not be able to use, sell, or otherwise manage their property out of fear that the court may re-open the issue. Additionally, this encourages the parties to ensure that full and complete discovery is conducted prior to a final order being issued.
Appealing Property Division
It may be possible to appeal an order regarding property division within a limited time following the issuance of the decree or final order. This is separate from re-hearing or re-opening the case and would be done if there was an error that was properly preserved.
Notice of the appeal would be served on the opposing party in a timely manner and they would be placed on notice that the property division is being appealed and may be changed if the appeal is successful. As a result they know that for a limited time they must avoid selling, using, or otherwise getting rid of the property at issue as it may be reallocated.
Because a party may be barred from re-hearing property division issues, it is in the interest of the parties to ensure that they have adequately presented the issues at hearing or addressed all relevant issues in a property settlement agreement and preserved the necessary issues for appeal.
The Role of a Family Law Attorney
In order to do this, parties should consult with family law attorneys as early in a case a possible. Failure to do so may result in missing the opportunity to appeal or present the necessary information for the court to issue its decision.
Simply failing to present the necessary evidence to support a position or to adequately present or preserve an issue for appeal is not grounds for re-hearing the issue and there may be little a family law attorney can do once the damage has already been done.
Ensuring that you have an attorney experienced in family law is important as it would be difficult to show fraud or re-hear property division issues simply because the proper discovery was not conducted.
It is important that the proper questions are asked and documents are requested. If they are not requested, there is no obligation to provide them. This is not a sufficient basis to re-open the evidence.
In order to re-open the evidence, there must be information that is newly discovered and could not have reasonably been discovered through the proper due diligence prior to the hearing.
In order to ensure your assets are protected and you receive an equitable division of property, you should consult with a men’s divorce attorney experienced in family law issues and familiar with the statutes and procedures that are common in this area of law.
To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Noblesville, Indiana Divorce Lawyer Sara Pitcher, contact Cordell & Cordell.