Vacatur of Divorce Judgments
Vacatur of Divorce Judgments
"Vacatur" is an order of a court which sets aside or annuls a proceeding. When a judgment of divorce is vacated, the marital rights and status of the parties are restored, and the parties are placed in the position in which they were before the divorce.
A party seeking to vacate an order, judgment, or a decree in a divorce proceeding must comply with the applicable statutory requirements of the state. An application for vacating a judgment is made by filing a petition in the original court. Emotional upset, being distressed, or false or perjured testimony cannot be the basis for vacatur of a judgment. A party who has obtained the divorce judgment is estopped from seeking to vacate it.
A divorce judgment or decree can be vacated or set aside on several grounds, such as:
- it has been rendered ahead of time;
- one party to the proceedings dies before the final order;
- the judgment is incorrect or irregular;
- it has been entered due to a mutual mistake of fact;
- it has been entered due to fraud or misconduct;
- the defendant was mentally incompetent and not represented by a guardian ad litem; or
- it was requested by both the parties.
Grounds for Vacating a Divorce Decree
An unconscionable marital settlement agreement can be the basis for vacating a divorce judgment. Marital settlement agreements, also known as separation agreements or property settlement agreements, may be considered unconscionable when the agreement is deemed unfair or one-sided. Generally, a divorce judgment can be vacated due to an unconscionable settlement agreement only if the settlement agreement is included in a divorce judgment.
Additionally, concealment of assets and income, as well as misrepresenting the extent of marital and non-marital assets, can be a basis for vacatur of a divorce judgment, as can the filing of a void appearance in divorce proceedings.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.
