Florida 1.540 and Denial of Due Process in a Divorce

By David Carnes

A divorce is a civil action. As in all civil actions, the parties involved have a Constitutional right to due process of law – the requirement that government take the actions necessary to ensure individual legal rights are protected. One of the ways Florida protects due process is by application of Florida Rules of Civil Procedure 1.540, which allows an aggrieved party to petition for the reversal of a judgment, decree or order, including a divorce decree, based on mistake or fraud.

A divorce is a civil action. As in all civil actions, the parties involved have a Constitutional right to due process of law – the requirement that government take the actions necessary to ensure individual legal rights are protected. One of the ways Florida protects due process is by application of Florida Rules of Civil Procedure 1.540, which allows an aggrieved party to petition for the reversal of a judgment, decree or order, including a divorce decree, based on mistake or fraud.

Due Process

"Due process of law" is a concept that originated in English common law and can be succinctly described as fundamental fairness of judicial process. It includes the right to petition a court for redress of grievances, right to call witnesses and right to face one's accuser. The Bill of Rights requires the federal government grant citizens and non-citizens due process of law. Due process was applied to state governments through the 14th Amendment of the U.S. Constitution and has since been included in the statutory and constitutional law of every state.

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

Florida Rule 1.540

Rule 1.540 protects due process by allowing aggrieved parties to dispute and potentially obtain reversal of "final" judicial actions, including divorce decrees that are unfair either because of innocent mistakes, such as clerical errors, or because of culpable misconduct, such as negligence or deliberate fraud. You don't have to be a party to a divorce action to benefit from Rule 1.540. Anyone adversely affected by a judicial action, such as a minor child of divorced spouses, may file a petition for reversal of a judicial action under Rule 1.540.

Prejudice

Evidence establishing fraud or mistake incidental to a judicial proceeding is not enough to reverse a judicial action under Rule 1.540. You must also establish "prejudice." This requires presenting evidence showing it is more likely than not that the judicial action you are protesting would not have occurred absent the fraud or mistake. For example, if custody of a minor child was awarded to a father who concealed evidence of an addiction to pornography, you must establish that if the evidence had surfaced during the custody hearing, the court probably would not have awarded custody to the father.

Damages

In addition to showing prejudice, a petitioner under Rule 1.540 must show that he was damaged by the judicial action he seeks to overturn. In Romero v. Romero, a divorced wife sought to set aside a property settlement using Rule 1.540. Although she successfully established that her husband had failed to disclose the existence of stock options that had been awarded to him and although the trial court determined the stock options were marital property, the appeals court denied her motion to set aside the property settlement because she failed to establish her claims that if she had known about the stock options, she not only would have claimed half, but she would have also exercised and sold them then used the proceeds to pay her mortgage.

Divorce is never easy, but we can help. Learn More
The Florida Rules for Setting Aside a Divorce Fraudulently Obtained

References

Related articles

Tennessee Law on Reversal of Legal Guardianship

According to Tennessee state law, a parent's right to privacy, which is protected by the state and federal constitutions, includes a parent's right to care for his children. However, various scenarios can prompt an order of guardianship by the court or short-term placement by the natural parent. Based on state statute, each county in Tennessee has developed its own procedure to petition for reversal of legal guardianship. Once the appropriate paperwork is turned in, a court date will be set at which time a judge will consider each party’s argument. The current custody agreement remains in effect until the court makes its ruling. Although procedural rules differ across the state, the application of case law by the courts remains consistent.

Extraterritorial Jurisdiction for Trademark and Copyright

Extraterritorial jurisdiction applies where a government has the right to exercise legal authority beyond its national boundaries. Trademarks and copyright are forms of intellectual property that protect brand names, logos and original artistic or literary works. United States law prohibits the unauthorized use of trademarks and copyright works within U.S. boundaries. However, if an overseas individual or business uses your trademark or infringes your copyright, the remedies available depend on whether or not the United States has a treaty with the country where the alleged infringement occurs.

How to Contest a Trademark Filing

If you become aware of another business using your trademarks and you discover that the business has applied for a trademark registration, the United States Patent and Trademark Office provides a way for you to contest the filing. You can contest the filing before and after the trademark registration issues as long as you comply with the USPTO’s deadlines and procedures.

Get Divorced Online

Related articles

Court Ordered Counseling in Divorce Cases

Divorce cases can quickly become extremely contentious, especially when there are children involved. Judges may order ...

Can I Sue My Ex-wife for Breaking the Divorce Decree?

Divorce decrees often contain details about property division, child custody, child support payments and alimony, but ...

Can You File for Divorce in Virginia if Your Spouse Refuses?

While divorce is typically an emotionally difficult process, the complexity and frustration of a divorce case is ...

Example of Breaking the Trademark Law

The most common methods of violating trademark law include trademark infringement and trademark dilution. Although ...

Browse by category
Ready to Begin? GET STARTED