How to File an Answer to a Summons to Set Aside Divorce

By Valerie Stevens

Divorce judgments are rarely set aside in the U.S. People usually file an action to vacate an order because they are unhappy with the results not for the reasons set out by the laws. There are circumstances in which a summons to set aside a judgment is proper, such as when the defendant was not properly served. However, the legal requirements are strict. The answer should respond to a legitimate claim in a summons or point out how the summons is not based on proper grounds.

Divorce judgments are rarely set aside in the U.S. People usually file an action to vacate an order because they are unhappy with the results not for the reasons set out by the laws. There are circumstances in which a summons to set aside a judgment is proper, such as when the defendant was not properly served. However, the legal requirements are strict. The answer should respond to a legitimate claim in a summons or point out how the summons is not based on proper grounds.

Purpose

A summons to set aside a divorce is not an appeal, which asks a higher court to overrule the lower court’s decision and must be filed within 30 days in most states. A summons to set aside a divorce asks the same court to withdraw its decision based on a mistake the court was not aware of when it ruled, usually within one year. The purpose of the answer is to reply to this summons, giving you an opportunity to respond or disagree.

Divorce is never easy, but we can help. Learn More

Grounds

The most common reason a person files a summons to set aside a divorce is because he claims he was not given the legally required opportunity to object to the divorce in the first place. If the plaintiff presents evidence of improper service, a summons to set aside the divorce can be filed. Other reasons someone files a summons to set aside a divorce are detailed in state statutes, most of which are modeled after Federal Rules of Civil Procedure Rule 60. One reason would be if there was new evidence the plaintiff could have discovered before the ruling. Another reason could be the judgment was void in the first place. For example, if the husband was already married to someone else at the time of the wedding, the marriage was not legal and is void. In your answer, you must respond to or disagree with these grounds and provide your evidence.

Answer

An answer to a summons to set aside a divorce is a formal document in which you respond to the other person's claim. For example, if you properly served your ex-spouse, but he claims he wasn't served properly and the divorce should be set aside, dispute this point. Restate that he was properly served and attach your proof. At the end of the answer, include a section in which you specifically ask the court to dismiss the summons.

Filing the Answer

The answer must be filed with the court that originally sent you the summons. Typically the summons tells you the court where you must file as well as the time frame in which you must file. You must reply within the time frame or you lose your right to answer the summons. To file, you can visit the court in person and ask the clerk of court to provide you with the appropriate form to use for your answer. Follow any instructions on the form, attach copies of your evidence, file it there with the clerk of court, and serve a copy on the plaintiff. After you file and serve the answer, ask the clerk of court in your county to notify you of any hearing in the case.

Divorce is never easy, but we can help. Learn More
Answering a Citation of Divorce

References

Related articles

Documents Needed for the Respondents in a Divorce Summons

Receiving notice that your spouse filed for divorce can be a stressful experience. Most states require that the filing spouse have the other spouse personally served with the divorce paperwork, which typically includes both a summons and complaint. These documents provide a basic outline of the case and explain your initial responsibilities. Knowing how and when you must respond to this paperwork will help ensure your full participation in all aspects of the divorce process.

What If I Don't Want to Sign Divorce Papers?

Although divorce is often difficult to face, you must be involved in the court proceedings so you don't lose what you're entitled to. Your spouse doesn't need your participation to get a divorce from you. As long as he notifies you after filing the petition and follows the court's rules, he can get a final divorce decree in court.

How to Get an Annulment in Virginia

An annulment is different from a divorce -- a divorce legally ends a valid marriage, whereas an annulment declares the original marriage invalid. The grounds for annulment are strictly limited, and annulments are granted far less frequently than divorces. Virginia, like other states, applies its own annulment law, including a statute of limitations. If you find that you are ineligible for an annulment, you can still obtain a divorce in Virginia, as long as you meet residency requirements.

Get Divorced Online

Related articles

Responding to a Divorce by Certified Mail

If your spouse files a divorce petition to initiate divorce proceedings, you must respond to this petition by the ...

How to File a Trial Brief for Divorce

Filing a divorce trial brief is different in different states and different counties within each state. This is because ...

How to File a Written Answer to a Divorce Petition

You must file a written answer to a divorce petition as soon as possible to avoid missing the court deadline for the ...

How to Contest an Uncontested Divorce Summons From Michigan

If your spouse filed for divorce in Michigan and you did not answer the petition, your spouse can file for a default ...

Browse by category