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Errors and Fraud in Divorce – How to Vacate the Orders

On Behalf of | May 1, 2015 | Divorce |

Fraudulent Divorce — The Purpose of This Blog

This Blog will explain the procedure used in court to vacate (nullify) final orders in a divorce that are obtained through fraud, misrepresentation, or misconduct. It will also discuss now to vacate orders for other reasons, like mistakes, neglect, new evidence, and non-service of court papers.


Fraudulent Divorce — The Basic Rule

Court procedure in divorces is governed by the “Civil Rules”. Most states have adopted some version of the Federal Civil Rules. The numbering and content of the civil rules in most states are therefore similar or identical. You should check your state’s version of the applicable rules referred to in this Legal Guide. The basic rule used in determining whether or not to vacate a prior court order is Civil Rule (CR) 60. In most divorces, there is no question of fraud or misconduct in getting a divorce, so CR 60 is usually not relevant. In a small but significant number of cases, however, the key rule is CR 60(b)(4), which provides that a court order can be vacated for “fraud …, misrepresentation, or other misconduct of an adverse party….”


Fraudulent Divorce — Examples

Here are two examples of fraud or misconduct that would justify vacating divorce court orders: (1) Husband and wife agree on all the terms of a divorce; they negotiate all of the issues, fill out all the forms and proposed final orders, and jointly file the petition for a divorce; later the husband changes the amount of child support and forges the wife’s signature on the proposed Child Support Order; he then goes to court without notice to the wife and gets a judge to sign the orders, including an amount of support that the wife would never have agreed to. (2) Same scenario, but after the parties agree on all proposed orders, the husband (who is in the Army) is deployed to Iraq; while he is gone, the wife replaces several pages of the property settlement, giving her most of the property; she then gets the final orders signed by the judge without telling her husband what she has done.


Fraudulent Divorce — Motion to Vacate the Orders

CR 60(b)(4) authorizes the court to vacate the fraudulent divorce orders in situations like those described above. The proper procedure is that the wronged spouse should file a motion to vacate or correct the orders. The motion should be filed within a reasonable time after discovery of the fraud; the sooner the better. The exact procedures for drafting, filing and serving the motion vary from state to state. At the motion hearing the judge listens to both sides, and then makes a ruling. The evidence of fraud must be clear and convincing, since the courts do not like to vacate prior orders.


Vacating Final Divorce Orders When There is No Fraud

CR 60 provides reasons other than fraud for getting final orders vacated. CR 60 (a) allows vacating an order where clerical mistakes were made (e.g., the agreed child support was $600 a month, and a typist accidentally typed “$6000”). CR 60(b)(1) and (3) allow orders to be vacated or amended when they were entered due to “excusable neglect” or “newly discovered evidence”; this type of motion has to be filed no later than one year after the final orders were filed in court. “Excusable Neglect” might be forgetting a court date; “newly discovered evidence” might be a pay stub showing a raise. CR (5) – (10) give other reasons to vacate the orders, like improper service of pleadings on the defendant, unavoidable misfortune which prevented a party from defending, or an error in judgment by a minor. CR 60(b)(11) provides the catch-all “any other reason justifying relief”. The bottom line, though, is that in all of these cases the court has a strong inclination to not vacate a prior order.


Fraudulent Divorce — Conclusion

If your spouse has obtained divorce orders without your agreement by using fraud, lies or trickery, you do have a remedy. The fraudulent divorce orders can be nullified by filing a CR 60 (b) motion to vacate, as described above. If your evidence of fraud is strong, your chances are good.


Fraudulent Divorce — Disclaimer

DISCLAIMER: (C) Bruce Clement This Blog is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney author. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Legal Guide is general in nature and may not apply to the factual circumstances in your situation. The applicable law may be different in the State or States where the relevant facts occurred. For a definitive solution to your situation you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation.