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Can The Court In Georgia Modify My Property Settlement Or Equitable Division From A Final Divorce Decree

The short answer is no. Dating back to at least 1921, with Gilbert v. Gilbert, 151 Ga. 520 (1921), the Court has consistently and repeatedly held that “[w]hile the trial court has broad discretion to determine whether the [divorce] decree has been violated and has authority to interpret and clarify the decree, it does not have the power in a contempt proceeding to modify the terms of the agreement or decree.” Darroch v. Willis, 286 Ga. 566 (2010). This rule was very recently again reiterated in a ruling that came down from the Georgia Supreme Court in Borotkanics v. Humphrey. The Husband (Borotkanics) in that case was awarded the marital home and another property with the provision that he must refinance to remove Wife’s (Humphrey’s) name off of the mortgages associated with the properties. Husband failed to refinance. Years later, Wife filed a contempt motion, and the trial court found Husband in willful contempt and ordered him to sell the marital home. He appealed, and the Georgia Supreme Court held the trial court had wide authority to find Husband in contempt but that it lacked the authority to make him sell the property.

Importantly the Court noted that assets divided in a divorce action “often mean much more to the recipient than the equivalent value in cash, and trial courts cannot alter the allocations agreed to by the parties and otherwise embedded in the original judgment.” Basically, this means divorce decrees are special because the property and its cash equivalent are not comparable in these types of orders. So, when the trial court ordered Husband to sell the property to punish him and cure his contempt of not refinancing, the trial court in effect modified the order, because the sale/cash value of the house and the house are not the same.

Last, the Georgia Supreme Court made some interesting suggestions on how to properly punish people in willful contempt without modifying the decree. For example, “[t]he court might order [Husband] to pay [Wife] a significant sum every day until he purges his contempt. Or the trial court could incarcerate [Husband] until he purges his contempt.” The Georgia Supreme Court made it clear the trial court has the authority to cause Husband to suffer because of his willful contempt; however, the trial court does not have the authority to alter, change, or modify the final divorce decree once it is entered.

There are other parts of a Divorce Decree that the court can modify, such as child support and custody, but the modification of equitable division or property cannot be modified. If you have questions, you should contact an experienced divorce attorney to help.