I got Florida house, but Irma took it away

Boston Herald - - THE EDGE • ADVICE - Wendy HICKEY

QI di­vorced about six months ago. I work re­motely, which is fine so long as I have an in­ter­net con­nec­tion. My ex has a day job, but we had ap­prox­i­mately equal in­comes and no chil­dren.

The only is­sue was divi­sion of our two houses, one in Mas­sachusetts, one in Naples, Fla. Af­ter the di­vorce, I moved to Naples. Now, just a few months later, the re­cent hur­ri­cane blew the Naples house to pieces.

I have in­sur­ance, but it isn’t enough to re­build the house. To re­build prop­erly, I’d need to use all my liq­uid as­sets. In the mean­time, I don’t have a place to work from, so I’m wor­ried that I’ll lose my job.

Is it pos­si­ble to re­open the di­vorce to re­vise the set­tle­ment agree­ment?

AI’d bet that, like most agree­ments, your agree­ment: a) was in­cor­po­rated into, but not merged into the judg­ment of di­vorce; and b) pro­vides that all as­sets were dis­closed, you had time to (and maybe you did) con­sult with a lawyer, and that you signed the agree­ment with­out any duress or un­due in­flu­ence.

When the par­ties agree­ment is not merged into the judg­ment, then the court can­not change the terms of the agree­ment un­less it in­volves child-re­lated matters and, in some cases, al­imony is­sues. That results in fi­nal­ity of the set­tle­ment, and it of­ten al­lows each party to plan what they want to do in the fu­ture with­out hav­ing to get their ex-spouse’s per­mis­sion. Although it won’t help your sit­u­a­tion, if you want to read the rel­e­vant Mas­sachusetts case, go to my web­site, wendy­hick­ey­law.com and search for Ames v. Perry.

While you didn’t men­tion it, I as­sume you also per­ma­nently waived al­imony. There, too, even if you lose your job, it is prob­a­ble that the court would not re­open the case and award you al­imony.

Of course, if you and your ex­hus­band had an am­i­ca­ble di­vorce, he might be will­ing to help you re­build ei­ther by giv­ing or lend­ing you some money or be­ing on a mort­gage.

When de­cid­ing a di­vorce case, the pro­bate court judges do not have a crys­tal ball. The court uses the facts that were en­tered in to ev­i­dence by tes­ti­mony and doc­u­ments. As­sum­ing your two houses were of equal value, the judge would likely have made the same de­ci­sion made by you and your hus­band. That de­ci­sion would prob­a­bly not be changed be­cause your house was ac­tu­ally blown down.

So, as I’ve of­ten said to clients, even though you have se­ri­ous problems, you no longer have to deal with, make meals for, or ac­com­mo­date your ex. As they used to say in the old days: You’ve got a lot of moxie and the smarts to dig out from this mess. So why go back to that worn-out jalopy?

Wendy O. Hickey has since 1994 been in­volved in and since 2003 been a trial lawyer who con­cen­trates her prac­tice on na­tional and in­ter­na­tional fam­ily law. Any le­gal ad­vice in this col­umn is gen­eral in na­ture, and does not es­tab­lish a lawyer-client re­la­tion­ship. Send questions to dear­wendy@boston­her­ald.com.

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