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.

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.

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.

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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.

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References

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