Can a Property Division Ordered By The Family Court Be Modified At A Later Time?

Sometimes, for one reason or another, a party to a family court order that has divided marital property desires to modify its terms. This will be a very tough task and, absent cooperation from the other party, the request will almost certainly fail.

This past May, in the matter of Howell v Howell the court of appeals reversed the trial court who they claim modified the terms of a prior property division that had become a final order of the court.

As part of their property settlement agreement, the Howell’s agreed to list an apartment building for sale and equally divide all net proceeds at closing. However, the property was taking longer to sell than anticipated and Husband had failed to comply with other terms of the agreement and was found in contempt of court. As a sanction, the Court ordered Husband to pay Wife 1/2 of the monthly net rental proceeds as an advance on her eventual receipt of one half of the net proceeds of the sale of the apartment building. Nothing in the parties prior agreement dealing with property division required Husband to pay Wife 1/2  the net rental proceeds pending sale of the property. 

The court found the trial judge modified a property division in contravention to long standing precedent against such an action.

…”the law in South Carolina is exceedingly clear that the family court does not have the authority to modify court ordered property divisions.” Green v. Green, 327 S.C. 577, 581, 491 S.E.2d 260, 262 (Ct. App. 1997) (emphasis added). Rather, “[t]he [family] court’s order as it affects distribution of marital property shall be a final order not subject to modification except by appeal or remand following proper appeal.” S.C. Code Ann. § 20-3- 620(C) (2014). Additionally, “[t]his [s]tate has a long-standing rule that one judge of the same court cannot overrule another.” Shirley’s Iron Works, Inc. v. City of Union, 403 S.C. 560, 573, 743 S.E.2d 778, 785 (2013).

This case shows the importance of carefully drafting agreements when certain provisions can only be carried out after the date of divorce. Once an agreement has become a court order in the family court, the property division is permanent and can never be modified without an agreement. This is to promote certainty and the efficient execution of the terms of a court order. If there is any question regarding the ability of a party to comply with the terms of a property division, the agreement should be re-drafted until such uncertainty has been resolved.

Often times people think that their former spouse will “work with them” if they have a problem complying with the terms of a property settlement. If the former spouse chooses to do so, that is well and good, but without the former spouses consent, the order is not subject to modification and will be enforced. The Judge in Howell was merely trying to assist both parties resolve a difficult problem in a fair manner, but she exceeded her authority. Both parties were left to abide by the terms of their property settlement agreement regardless of whether it was working for them. Drafting this agreement with an eye towards the future may have prevented this problem.

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