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April

How Do You “Un-Divorce” a Former Spouse?

By Iafrate & Salassa

young couple working with a Clinton Township divorce lawyer to reverse their divorce judgment

The finality of divorce gives most people comfort in knowing a former spouse is no longer emotionally or legally connected to them, but the conclusiveness of divorce decree also means it is extremely important to analyze the impact of this decision on all aspects of a person’s life – emotional, psychological, financial, and childrearing.  However, when people formally enter the divorce process it rarely occurs to them that they may want a court to later set aside, or vacate, a divorce decree. A couple in New Hampshire unsuccessfully petitioned to have their divorce undone when the New Hampshire Supreme Court determined courts do not have the statutory authority to undo divorce decrees and adopting such a position would jeopardize the finality of the divorce process generally. If former spouses do later decide to reconcile, it is much easier and more practical to remarry instead of essentially asking a court to erase its earlier action. While most states, including Michigan, do allow courts to vacate divorces for things like fraud or mistake, just changing your mind is not a sufficient basis.

Default Judgment/Lack of Notice

A default judgment is entered when a party to a case fails to respond to petitions filed with a court and/or appear at mandatory hearings before a judge. Default judgments are usually final and grant the petitioner everything he/she asked the court to grant. It is, however, possible to set aside this kind of judgment if it can be shown that the respondent did not receive notice of the court filing or hearing or the other party took steps to prevent the respondent from receiving notice or attending a required hearing. Parties not receiving notice of court proceedings have one year after the final judgment is entered to request relief from the judgment. Realistically though, these circumstances rarely occur, so it is important to respond to every document you receive in a divorce case so you do not lose the right to challenge the other side’s demands.

Grounds to Vacate

Additional grounds a party can use to justify vacating a court order include the following:

  • clerical error;
  • mistake, surprise, or excusable neglect;
  • newly discovered evidence not previously available; or
  • fraud, misrepresentation, or other misconduct.

Clerical errors could be an incorrect child support amount or ordering the sale of the marital home after the parties agreed to keep it for the benefit of their children. A mistake or excusable neglect might be forgetting a court date, and newly discovered evidence would be something like obtaining a pay stub that shows one spouse received a raise while the divorce case was pending. Finally, fraud or other misconduct, the most likely basis a party would have to request vacating a judgment, typically stems from spouses hiding assets, changing the terms of a settlement agreement without the other’s knowledge, or selling marital property for much less than the market value to reduce the amount of money the other spouse gets. Just as noted above, affected parties have one year to ask the court to act, so if you suspect or learn of questionable behavior, act quickly.

Talk to a Divorce Attorney

The normal stress associated with divorce is more than enough for most people, but that pales in comparison to stress caused by learning a spouse intentionally decided to deceive you or cheat you out of your fair share. To prevent scenarios, like those described above, it is important to retain a divorce lawyer who will know what questions to ask and what information to look for so that your best interest is protected. The Clinton Township law firm of Iafrate & Salassa, P.C. will work to get you the outcome you desire. Contact us to schedule a free consultation.

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