The Challenge of Setting Aside a Divorce Decree
A final judgment is essentially the end of a court proceeding. For dissolution of marriage cases, the final judgment of divorce declares that the parties are legally divorced. It may also divide property, establish custody and grant future support payments. Absent an appeal, the judgment is set in stone and each party is obligated to follow it. However, in some instances, a party can ask the judge to set aside the judgment. This means that the judge nullifies the judgment as if it never existed; the judge then hears the case again and makes a new final judgment.
Setting aside a final judgment of divorce generally stems from lies or fraudulent behavior that surrounded the divorce proceedings. There are two classifications of fraud for these proceedings. Intrinsic fraud refers to actions taken during the divorce proceeding. Some examples include:
- – A spouse hides substantial monetary assets from the court and the other spouse, such as an offshore bank account or real property not titled to both spouses; or
- – The true paternity of a child is hidden.
Extrinsic fraud refers to actions that prevent a spouse’s participation in the court proceeding. An example is as follows:
- – The petitioner lies to the court and states that the whereabouts of the respondent are unknown, denying the respondent an opportunity to be heard by the judge.
The Set-Aside Process
Set asides can be granted for the entire final divorce decree, or any specific part of the judgement. For example, a spouse may want to set aside a property distribution, but not the actual divorce. To request a set-aside, the aggrieved party must file a motion with the court.
The procedural requirements of filing a motion can prove substantial and challenging to understand. It is best to secure the services of a knowledgeable attorney to handle the task. The motion must state what fraudulent activity occurred and why it merits a set aside of the final judgment. The elements of fraud include:
- – A false statement that involves a material fact;
- – A finding that the accused either knew or should have known that the statement was false;
- – A finding that the accused acted with the intention of inducing the actions of the spouse; and
- – Showing of an injury to the spouse who relied on the information.
If the judge agrees with the motion, the final judgment is set aside and a new proceeding is ordered. Generally, Florida courts allow one year from the date of a final divorce judgment for the filing of a set-aside motion.
Convincing the court to set aside a final divorce judgment is not an easy task. With the help of an experienced attorney, you can adequately illustrate the fraudulent actions of your spouse and convince the court to set aside the judgment in the interest of fairness and equitable distribution.
If you feel that your spouse acted fraudulently during your divorce proceeding, contact the attorneys of Vanessa L. Prieto, LLC for a consultation about your potential case. Located in Fort Lauderdale, our office serves Broward, Miami-Dade and Palm Beach Counties. Contact the office today to schedule an appointment.