Can a Judgment of Divorce be vacated?

I have previously discussed modifications of judgments of divorce. As a reminder, a modification does not erase the order that was made, but if there is an adequate change of circumstances under the law, a party to the case can change the order going forward in certain circumstances. But, can one vacate a judgment of divorce or have it taken away as if it never existed?

The law, in New York, specifically the Civil Practice Law and Rules, details the mechanism by which a party to a divorce case can request a court to open up, vacate, or relieve them from the terms of the judgment. The person that wants the relief needs to make a motion asking the Supreme Court to grant it. The first enumerated reason that the law allows for this relief to be granted is if there is an excusable reason that the person defaulted. The motion needs to be made before the expiration of a year after the moving party received notice of the entry of the judgment or within a year after the movant entered the judgment if that is the situation. The other reasons outlined in the statute involve: new found evidence; fraud type issues; no jurisdiction; an agreement to vacate a default judgment; or if a previous order that the Judgment of Divorce was based upon was changed, vacated or modified then it could be a basis to vacate the judgment of divorce.

This blog article will focus upon the first reason a court can relieve a person from the Judgment of Divorce which is the excusable default. There is a liberal policy in New York to vacate default judgments in divorces as it is the preferred public policy that matrimonial cases be decided on the merits. All the requirements do need to be in place, however, to successfully vacate the judgment. As mentioned, the one year period after notice of its entry applies. Although the statute only mentions that the default be excusable, the case law made another requirement which is that there also be alleged what is called a meritorious defense.

So what are excusable reasons that the person defaulted in being a part of the case? “I was never served” is probably the most used reason as an excuse. A “traverse” hearing could be ordered by the court for the court to decide whether or not there is any merit to the lack of service claim. How long the default has existed may be considered by the court when deciding whether to vacate the judgment. Law office failure, or a clerical error on the part of the court, too, can be considered. Illness, impossibility of appearing in the case, and being threatened all could be reasons for an excusable default. The court has discretion to determine whether the proffered reason is sufficient. Blanket conclusory statements are often not enough. Arguments can be made to support or oppose whether an excusable default exists.

What is a meritorious defense? The lack of the claimed grounds for the divorce could be a meritorious defense. For example, if the divorce was granted upon the grounds of abandonment for one year and the moving party alleges that the parties lived together and engaged in marital relations during that year, this can constitute a meritorious defense. An allegation that the court erred in the distribution of marital property or debt might be held to be a sufficient allegation of a meritorious defense. Child support and maintenance miscalculations could constitute a proper defense. A child custody award that was not in the children’s best interests is a possible reason. Again, conclusory unsupported allegations might not be enough. The art of advocacy to argue for or against the vacature can prove to be all important.

The motion is usually made by what is called an Order to Show Cause in which the court would direct, in its written order, for the opposing party and their attorney(s) to show why the Judgment should not be vacated. The motion should be supported by an affidavit of the party, an affirmation by his or her lawyer and any accompanying exhibits.  The moving party may want to ask the court to direct that marital assets be kept in place, among other things, while the motion is being considered.

As always, the representation of an experienced matrimonial attorney can be crucial to the success of defending against or getting a default vacated. Call to discuss or schedule a free initial consultation. Please see our other articles and WebPages for more information on mediation, collaborative law, matrimonial and family issues. It is our pleasure to try to help.