How to Vacate a Judgment on an Uncontested Divorce

by Rob Jennings

    Even though a judgment has been entered in your uncontested divorce case, you may still be able to vacate or set it aside. Your state's civil procedure code probably has a mechanism for re-opening closed cases. Common reasons to set aside the divorce judgment include mutual mistake of fact, fraud or duress. The specifics, however, will depend on your state's laws.

    Time Limit

    Just as state law dictates what the court can do in your divorce case, it also specifies when and how a divorce judgment can be vacated. Each state sets a time limit for how long a party can wait before filing their motion or action. Courts may set aside an order if you show that the judgment is incorrect or irregular; the judgment was entered due to a mutual mistake of fact or misconduct; the defendant was mentally incompetent; or another reason that isn't specifically stated in the law but which would result in a blatantly unjust result, if not considered. The longer you wait to file your motion, however, the more compelling your reason needs to be. If you waited too long to file your motion, it may be too late to set aside your judgment, no matter how compelling the facts.

    Uncontested Divorce

    A contested divorce is one where the parties cannot agree to the issues in the case. An uncontested divorce, however, is where the parties can agree on custody of their children, the marital assets, and other issues. A divorce is also considered uncontested if one party does not respond to the divorce complaint. When this occurs, the filing party can seek to obtain a default judgment.

    Default Judgment

    Generally, you cannot appeal a default judgment when you fail to appear for a trial. However, if the party failing to appear wants to challenge an order resulting from the default, that party can file a motion to vacate the default. Usually, the person filing the motion to vacate a default judgement must show that their failure to appear for the trial was excusable and that there is a good cause of action or defense. The other party can still appeal the judge’s decision to vacate the judgment to a higher court. Exactly what constitutes excusable neglect will vary from state to state, and may not be found in the statute itself. To figure this out, you will need to read your state's appellate court decisions dealing with excusable neglect.

    Stipulated Judgment

    A stipulated judgment is when a divorce judgment is entered on a written agreement between the spouses. It is even possible to vacate a stipulated judgment in certain cases. For example, a judge might vacate a stipulated judgment if there was a mistake of law or fact. A judge may also vacate a stipulated judgment if the moving party can can show that he entered into the agreement under duress.

    About the Author

    A practicing attorney since 2003, Rob Jennings has written fiction and nonfiction since 2005, with his work appearing in a variety of print and online publications. He earned his Juris Doctor from the University of North Carolina at Chapel Hill.

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