Beth M. Johnson
Property Orders Cannot Be Modified, BUT There Might Be Room for Clarification
Updated: Jan 31, 2022
There is an entire chapter of the Texas Family Code devoted to modification of child-related orders. However, a property division—like final orders in other civil suits—cannot be modified once plenary power has expired. Once the trial court signs a final decree of divorce, you have 30 days to file a motion for new trial or a notice of appeal. If you file a motion for new trial, you extend the trial court’s plenary power to modify the judgment for 105 days (75 days to rule on the motion plus 30 days plenary power after that).
If you don’t win a new trial or appeal the judgment, the only way to challenge a property division after the plenary power has expired is through a restricted appeal or a bill of review.
A restricted appeal must be filed in the appellate court within six months after the decree was signed, and—in addition to other requirements—you must show error on the face of the record, which is a high burden to meet.
A bill of review must be filed within four years of the final decree, and—again, in addition to other requirements—you must establish the existence of extrinsic fraud committed by the other party, which is rarely seen.
So, absent one of these extraordinary circumstances, you simply cannot modify a property division once plenary power has expired.
However, you can seek clarification from the trial court that signed the decree any time. Even decades later.
Whether a court has authority to clarify a decree depends on whether the decree is ambiguous. Ambiguity is a question of law and requires application of rules of construction of judgments. The decree is reviewed as a whole so that all of its terms are harmonized and given effect. If the decree is unambiguous, then the court must enforce the literal language even if abnormal and even if contrary to law. In other words, the parties’ failure to appeal sometimes leads to unfortunate results for one—or even sometimes both—of the parties.
Additionally, while it’s a best practice to get any necessary domestic relations order (“DRO” or “QDRO”) signed at the same time as the decree, a QDRO is a form of clarification of the final decree. It clarifies for the employer or account manager how bto effectuate the distribution of retirement funds pursuant to a divorce division. So, you can get a QDRO signed years after a decree is rendered; however, you have to be careful that the QDRO does not alter the division awarded in the divorce decree.
Be sure to clearly review the final decree (and QDRO if there is one) immediately after it is signed. If there are any typos, omission, or errors, you must file a motion to correct those errors within 30 days, and you must get the trial court to sign a corrected decree or an order granting a new trial within 105 of the signing of the first decree.
If an error is discovered within 6 months but after 30 days, review the record. Are there any blatant errors that might entitle your client to a new trial? If so, and if your client meets the other requirements, your client might be entitled to a restricted appeal.
If an error is discovered after 6 months but within 4 years, were there any bad acts that occurred during the first trial that might entitle your client to a bill of review?
Finally, if all the above deadlines have passed, can you find any relevant ambiguities in the decree? Did the decree purport to divide “some” of one party’s retirement to the other but fail to identify how much? Was it clear how the debts were supposed to be allocated? If there is an ambiguity, you can start looking for parol evidence to support your client’s view of what the decree was supposed to say and get that clarified in a new order.