How to Vacate a Judgment on an Uncontested Divorce

By Rob Jennings J.D.

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.

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.

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

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.

Divorce is never easy, but we can help. Learn More
How Long Do You Have to File an Appeal for Divorce in Arizona?

References

Related articles

How to File for Divorce With an Arbitrator

Arbitration is a form of dispute resolution that serves as a viable alternative to traditional divorce litigation. In divorce arbitration both spouses mutually agree to hire a neutral third party, known as the divorce arbitrator, to hear the case and render a binding decision. Often, spouses choose divorce arbitration over divorce litigation because arbitration is a private form of dispute resolution that occurs outside of the courts and thus out of the public eye. Additionally, arbitration can be quicker, less adversarial and cheaper than divorce litigation.

What Is a Prove-Up Hearing in the Divorce Process?

It takes two to tango, but sometimes only one to obtain a divorce. When only one spouse files papers in a divorce action, the court may grant a default divorce judgment generally on the terms requested by the filing spouse. Some courts require that party to appear to establish some of the essential facts before entering the final divorce judgment. A similar hearing may be required in any uncontested divorce proceeding. This is called a "prove-up" hearing in some states.

Reasons to Vacate a Divorce Decree in Oregon

Once a judge has signed your divorce decree, it's usually a done deal.. While it's possible to vacate a divorce decree in Oregon, it's not easy. The Oregon Rules of Civil Procedure specify the grounds a court will consider in deciding whether to overturn your divorce. There are a limited number of reasons and the court tends to construe them narrowly. Even false testimony or the concealment of assets during a divorce proceeding might not be enough to enable you to vacate your divorce.

Get Divorced Online

Related articles

A Motion to Vacate Custody Order

In a divorce with children, the court can issue different types of custody orders at different stages of the ...

What Does Entry of Judgment in a Divorce in California Mean?

The term "entry of judgment" refers to a court order being entered after the judge rules on a case. In a ...

How to Undo Custody Arrangements in New Jersey

The divorce process can be a bumpy road. You may think you have certain issues resolved, such as custody, but then ...

Retracting a Divorce

Enough couples change their minds about going through with their divorces that most states have built-in legislation to ...

Browse by category