DOES YOUR CLIENT WANT A SECOND CHANCE TO GO BEFORE THE COURT?
Without a doubt, family law matters can quickly become messy, especially when one party claims that he or she didn’t have the chance to respond in court. There may come a time when you have a client against whom the court handed down an order, but he or she believes that the situation warrants a second chance to go before the court.
Whether it was a custody order, a child support order or a final decree in a divorce, the order can only be set aside if a valid legal reason exists to do so. Determining whether such a reason exists is the first step in the process. If a valid, legal reason does not exist to even request that an order be vacated, your client could end up footing the bill for the other party’s legal fees and costs.
Did your client not receive the petition and summons?
There are instances in which an individual does not receive a petition and summons in time to respond and avoid the entry of a default judgment. Most often, this occurs due to the use of alternative methods of service such as publication or posting at the courthouse. Your client will need to provide evidence showing that he or she neither avoided service nor simply neglected to respond within the time limit.
Under ordinary circumstances, you must make a request for an order to be set aside within two years unless your client received a notice of default judgment. In that case, the deadline shortens to 180 days. Of course, the earlier you bring the matter to the court’s attention, the better off your client will be.
Does your client say the court entered the order based on a mistake?
As they say, “to err is human,” and the court may allow this to be a reason to set aside a judgment. If your client relied on someone else to handle the matter, misunderstood the legalities involved or didn’t understand what to do, the court will require evidence, an explanation and a valid reason why he or she should have the opportunity to participate in the matter after the fact.
Does your client say the court entered the order based on fraud or deceit?
When it comes to allegations of fraud or deceit by the other party at any point during the proceedings, the court will look for the following:
- Whether the other party committed perjury
- Whether the other party committed actual fraud
- Whether the other party failed to comply with financial disclosure requirements
- Whether your client failed to respond under duress
- Whether your client suffers from some form of mental incapacity
- Whether a mistake occurred in an uncontested or stipulated agreement
The time limits for requesting the court to vacate a judgment vary depending on the circumstances. Again, the sooner you bring the matter before the court, the better off your client will be.
These are just some of the more common legal justifications for requesting an order to set aside a judgment. If the matter involves child support or spousal support, different criteria may apply. If you don’t handle these types of requests often, it may be in your and your client’s best interests to seek appropriate legal guidance from a colleague with experience in post-judgment litigation..