How to File for Retroactive Divorce
By Kelly Mroz
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A retroactive divorce is called divorce nunc pro tunc. The Latin literally means "now for then"; that is, the court will correct now what should have been done correctly earlier. State law typically allows such a decree only when the court meant to enter a divorce but, due to clerical errors, the divorce was not actually entered. In this situation, the court can correct the error. The official date for the divorce can be made retroactive to the date it should have been entered.
Consult an attorney or check the laws of your state to assess if and when a nunc pro tunc divorce is available. Divorce laws differ by state.
Find the error. To have an action in divorce nunc pro tunc, there must have been a clerical error. The error may be that the order was accidentally not signed by the judge, not entered as an order, or not properly filed or recorded. Review the documents on file with the courthouse to see if the divorce decree was filed, has the correct date and has the judge's signature. Ask the records clerk, who was responsible for filing the document correctly, for help in identifying the error. If neither you nor the clerk is able to locate the clerical error, consult with an attorney.
Prepare and file a motion, a formal request that states the problem and allows you to get a hearing date. This document is filed with the court and typically must be served on the other party.
Appear at the scheduled hearing. Both parties have the opportunity at this time to state their positions to the court and present evidence to support their arguments. Explain that you want the divorce decree issued bearing the original date it would have been entered if not for the error. Present the evidence you gathered to show that the court made an error when attempting to enter the divorce earlier.
Receive the judge's decision. He may issue his decision at the end of the court hearing or take the matter under advisement and mail it later.
Tips
If you don't need the retroactive date, it may be easier to have the court simply record a corrected order. Nunc pro tunc orders are usually sought when the date really matters, for example, when one of the parties has already remarried and needs the retroactive order to legitimize the new marriage.
Warnings
The rules for what a motion must contain, how to file it and how to serve the other party vary by state and county. Hire an attorney or check your local and state rules before preparing this document.
References
- The Law Dictionary: Nunc Pro Tunc
- Family Law Prof Blog: Case Law Development: Nunc Pro Tunc Order Cannot Change Date of Divorce If No Error
- Court of Common Pleas of State of Delaware: How To Prepare a Civil Motion
- State of Delaware Family Court: Flowcharts
- Fallgatter, Farmand & Catlin, PA: Nunc Pro Tunc Proceedings
Writer Bio
Kelly Mroz has more than 12 years of experience as an attorney in family, business and estate matters. She graduated magna cum laude from the University of Pittsburgh School of Law, where she served as an associate editor for the "Journal of Law and Commerce." Mroz's work has also been published in the "Pennsylvania Family Law Quarterly."