BY: Robert B. George, Esquire       

For a myriad of reasons, many individuals often find themselves wanting or needing to open or vacate their Divorce Decree.  This is most often due to some concern on the part of one Party/Spouse to the underlying divorce case that the underlying disposition of the marital estate, and related equitable distribution matters was not appropriate or fair, possibly being the result of fraud due to a failure to provide full disclosure on the part of the other Party/Spouse.  

In that regard, the laws among the various States differ as to when, if, and under what circumstances a Party, or Parties, to a now concluded Divorce Action may be able to open and/or vacate the final Decree in their underlying Divorce Case. The most common reason that a Court will be inclined to vacate a divorce decree is actually in the event of fraud on the part of the other Party/Spouse.

Under the applicable laws in Pennsylvania, an individual is required to file a petition to open or vacate a divorce decree within a specified time-period which, depending upon the circumstances, can be between thirty (30) days to five (5) years following the entry of the Divorce Decree.

Pursuant to the applicable laws/statute in Pennsylvania, the Petition must allege, and the complaining Party/Spouse would ultimately be required to establish, or prove, “extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the face of the record…”  Intrinsic fraud relates to a matter adjudicated by the judgement, including perjury and false testimony.  For example, if your former Spouse had an ownership interest in certain assets that she/he failed to disclose during the divorce process, you may have several remedies available under the Pennsylvania Law, more specifically the Pennsylvania Divorce Code.  The availability of remedies, however, depends upon the specific facts and circumstances of your underlying case.  One option you may have available would be to file a Petition to Open or Vacate the Divorce Decree based upon the alleged/purported fraud pursuant to Section 3332 of the Pennsylvania Divorce Code. 

Importantly, however, there are different time limitations imposed depending upon the type of fraud being alleged.  For example, if the alleged fraud was perpetrated by perjury or false testimony, you would only have thirty (30) days to file such a Petition. If, on the other hand, the alleged fraud was in the form of fabricating evidence, for example, you would have up to five (5) years to file such a Petition.

If remedies pursuant to Pa.C.S.A. §3332 are not available because there was no fraud involved, or you are now outside of the five (5) year statute of limitations, you can still seek relief in the form of a what is known as a constructive trust pursuant to §3505(d) of the Pennsylvania Divorce Code.

A constructive trust is an equitable remedy that a court may impose to benefit a party that has been wrongfully deprived of his/her rights. Once the trust is created, assets can be placed into this trust thereby giving the court power to distribute the assets fairly and equitably.

Importantly in that regard, it is worth noting that there are no time limits proscribed to actions filed under §3505(d). Pursuant to Pa.C.S.A. §3505(d).  If a party fails to disclose an asset, the aggrieved party may petition the court for the creation of a constructive trust at any time. 

It is important that you speak with an attorney experienced with such matters in order to ensure that your rights are properly protected in the underlying divorce action.  

The Law Firm of DiOrio & Sereni, LLP is a full-service law firm in Media, Delaware County, Pennsylvania. We strive to help people, businesses and institutions throughout Southeastern Pennsylvania solve legal problems – and even prevent legal problems before they occur.  To learn more about the full range of our specific practice areas, please visit or contact Robert B. George, Esquire at 610-565-5700 or at [email protected].


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