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Lady Themis
Lady Themis, Lawyer
Category: Family Law
Satisfied Customers: 7751
Experience:  Divorce, child custody, child support, etc.
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I have a motion to amend,alter or vacate that was sent to me.

Resolved Question:

I have a motion to amend,alter or vacate that was sent to me. My attorney did not give me a chance to respond to the motion to amend,alter or vacate letter. The letter was sent out on the 28th of Jan. and I want to know if I have time to send out a letter to respond to it. I also want to know if this is a retrial or some sort. If so is there a way that I could ask for more time do to the lack of communication of my attorney. Because I feel that I am poorly being misrepresented by that person. Another thing, what are the chances of the decision being overturned when the judge was the one that made the first decision. I appreciated whoever could give me this info. Thank you.
Submitted: 1 year ago.
Category: Family Law
Expert:  lwpat replied 1 year ago.
Thanks for using JA. I will do my best to answer your questions.

In order to try to assist you I will need more detailed information. Please explain the nature of the action and what the other party is requesting.
Customer: replied 1 year ago.

There was a motion to amend,alter or vacate. My ex spouse felt that the decision was unfair.


 

Expert:  lwpat replied 1 year ago.
My question is for the details. When was the order signed, when was the motion filed, why did your attorney not file a response, what specifically is the motion asking the judge to do. Thanks
Customer: replied 1 year ago.

Relist: Other. I feel that he is not reading my question at all. It explains what he needs to know. I feel that I am answering the same question over again with him.

Customer: replied 1 year ago.
Relist: Other.
I feel that he is not reading my question at all. It explains what he needs to know. I feel that I am answering the same question over again with him.
Expert:  Lady Themis replied 1 year ago.
Hello. New expert here. I will assume because you did not want to give any additional details, that you would like an answer solely on the original information provided.

You questions were essentially these:

The letter was sent out on the 28th of Jan. and I want to know if I have time to send out a letter to respond to it.

My reading of Rule 12 of the Alabama Rules of Civil Procedure indicates that responsive pleadings, such as an objection, should be filed within 30 days of the original motion. In that case, there would still be time to file an objection with the court.

I also want to know if this is a retrial or some sort.

Without further details, it is difficult to say what this motion is regarding. A motion to alter, amend or vacate generally asks the court to set aside or nullify an order that had previously entered in a case. Only if the motion is granted would there need to be a new trial, and that would generally be set for a later date.

If so is there a way that I could ask for more time do to the lack of communication of my attorney.

A party can seek a continuance from the court, at the court's discretion. If your attorney has not withdrawn from the matter, it likely would not hear a request from you, but would need for your attorney to file the motion.

Because I feel that I am poorly being misrepresented by that person. Another thing, what are the chances of the decision being overturned when the judge was the one that made the first decision.


A motion to amend, alter or vacate is a difficult motion to prevail on. The legal basis for this type of motion appears to be grounded in caselaw in Alabama. See the notes to Rule 59:

http://judicial.alabama.gov/library/rules/cv59.pdf

I hope this answers your question. Please let me know if you have any follow-up questions, which I am happy to answer. Once you are satisfied, please kindly rate my service, as that is how I am compensated by the website. Thank you.

Customer: replied 1 year ago.

The final decree was signed Dec.31. The motion to amend was set on Jan. 28. I got a court date of March 7. But for some reason I did not get a responses or a letter from my attorney if he respond to the motion to amend. So I'm not sure if I have to respond 20 or 30 calender or work days. I'm not sure if I have to show up to the hearing or pre-trial. These are the things that I am not being told. Sorry if I'm asking you the same question but, what your saying is that I could still send in a response to the motion to amend. Also you stated that A motion to amend, alter or vacate is a difficult motion to prevail on. I know you don't have a crystal ball in front of you but how persuasive you have to be. Once again I apologize if I offended anyone. It's just divorce is a nasty beast.

Expert:  Lady Themis replied 1 year ago.
You should understand that if you have not dismissed your attorney, the court likely will not consider any motions or objections filed by you personally. It would be up to your attorney in the practice of due diligence to file a timely response. Your attorney should attend the motion hearing and argue in your favor, and advise whether your attendance is required for this particular matter.

Motions to amend, alter or vacate are generally granted in the following circumstances: (1) there has been an intervening change in controlling law since the order, (2) there is new evidence available or (3) there is some need to correct a clear error or prevent manifest injustice in the ruling. This motion is difficult to prevail on in that the burden is on the moving party to prove one of these situations, although I obviously cannot say what the chance in your particular case might be.
Lady Themis, Lawyer
Category: Family Law
Satisfied Customers: 7751
Experience: Divorce, child custody, child support, etc.
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