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I want to file a motion to vacate a divorce decree that was

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I want to file a motion to vacate a divorce decree that was ordered without my presence or notification ! I lost custody of my kids, a large percent of my income, and I'm fighting to keep my assests !
Submitted: 4 years ago.
Category: Family Law
Expert:  Lawmoe replied 4 years ago.

How long ago was it entered and in what state? How was it entered by default? In other words, why were not notified or present?

Customer: replied 4 years ago.
It was in Illinois this past april, 2009. It was entered by default. I learned about it when i was picked up at home by police for a warrant concerning the missed court date after my ex called police to enforce it. I later found out by searching court records that notices had been sent to the wrong address for months at a time by my ex ! She intentionally address the envelopes with the wrong direction or inversed the numbers of my address ! She gave erroneous inflated amounts of my income to the courts which had me fighting for my income for months because the child support order was taking 50% out of my paycheck and has me paying all of my chidren's fees too ! The decree is majorly lopsided with no fair chance. I need it overturned ! I
Expert:  Lawmoe replied 4 years ago.

You must immediately file a Motion to reopen the decree based on fraud. The fraud is that your spouse filed an affidavit of service indicating you had received notice of the proceedings with knowledge that she served them at the wrong address.

 

In Illinois, a party attempting to set aside a decree on the ground that it was procured by fraud must make the traditional showings required to prove fraud.

 

 

To show fraud, you must demonstrate that there was:

 

(1) a representation (in this case the filed affidavit of service),

 

(2) that was false (wrong address)

 

(3) its materiality, (without service, the case cannot proceed); and

 

(4) your spouse's knowledge that the representation was false when made

 

You also cannot delay. A person must act without unreasonable delay. That means you must file a Motion to reopen as soon as you are made aware of the entry of the Judgment and the fraud.

 

There are no specific forms for this type of Motion. As a result, you would be wise to hire counsel given the long lasting impact if you do not file properly or do not prevail. However, you can use and modify the generic Motion form entitle "Motion" located at http://www.lakecountyil.gov/CIRCUITCLERK/PUBLICATIONS/AllForms.htm

 

It should be supported by an affidavit (a notarized statement) as to what occurred and why it was fraud and why the Judgment should be reopened.

 

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Lawmoe, Family Law Attorney
Category: Family Law
Satisfied Customers: 2415
Experience: Family Law Lawyer for 19 years
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