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what legal basis is required to ask a judge to modify a stipulation

 
JD 1992's Avatar
  • Answered by:JD 1992
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Customer Question

what legal basis is required to ask a judge to modify a stipulation of settlement?

 

Optional Information:
Country relating to Question: United States
State (if USA): New York

Already Tried:
preparing an OTSC to request modification of Stipulation of settlement in NYC supreme court

Submitted: 303 days and 19 hours ago.
Category: Legal
Value: $60
Status: CLOSED
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Expert:  JD 1992 replied 303 days and 19 hours ago.

Can you provide a few facts to put this into context?

Customer replied 303 days and 19 hours ago.

I am requesting the NYC Supreme court judge who granted the divorce to modify the stipulation of settlement to request that proof of life and proof of non remarriage be provided by ex wife for the duration of the maintenance payment since ex wife resides in Europe . She has committed perjury and lies during the divorce proceedings and will never inform me of her remarriage so that she can continue to collect maintenance . Basically requesting that she has the Burden of Proof that she has not remarried for the duration of the maintenance payments

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Expert:  JD 1992 replied 303 days and 19 hours ago.

Has the divorce already been granted and the settlement "proven up" or is this being asked before everything is final?

Customer replied 303 days and 18 hours ago.

all completed in January 2012.. ex wife left the US recently for her native France and I cannot verify that she has not remarried. She is french citizen and has never declared her US marriage of 10 years to the french authorities among other frauds she has committed, all documented in the court documents.

Accepted Answer

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Expert:  JD 1992 replied 303 days and 18 hours ago.

You aren't actually asking the court to modify the Settlement Agreement since it has been entered by the court and has now become a part of the court's order. You are going to have to file a Motion to Modify the Order and 1) allege that she has remarried but you are going to need some kind of evidence to back that up or 2) ask the court to make the order for a year at a time with the burden on her to come back and ask to extend the order.

Your problem is going to be that there isn't any mechanism to "require her to prove that she hasn't remarried" since that requires that a court keep a file open and revisit the issue periodically. Doing it the way I suggest in #2 solves all the issues. For the grounds to support it you are going to have to have a material change in circumstances and you can claim that the move to France prevents you from verifying she is not married.

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Expert TypeAttorney
Category: Legal
Pos. Feedback: 97.7 %
Accepts: 11327
Answered: 7/8/2012

Experience: Began practicing law in 1992

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