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Motion for Set Aside

Motions to Set Aside

Motions to Set Aside, if granted, operate to set aside the final judgment entered in the matter. What this means is that the final judgment in the matter will no longer be operative or effective. In Georgia, a Motion to Set Aside a judgment may only be granted by the court under the following circumstances:

  1. The judgment being attacked was based on a lack of personal or subject matter jurisdiction. Riersgard v. Morton, 267 Ga. 451 (1997).
  2. The judgment was based on fraud, accident or mistake. O.C.G.A. § 9-11-60(d)(2) and Scott v. Scott, 282 Ga. 36 (2007).
  3. The judgment was based on a non-amendable defect that appeared on the face of the record or pleadings in the case. O.C.G.A. § 9-11-60(d)(3).

Essentially, in order for a final judgment to be set aside as a result of a valid Motion, there must have been some type of defect in the final judgment, or the final judgment must be based on some legal defect. It is important to note, however, that even if there is a valid legal  basis for a Motion to Set Aside, if a party has received benefit from a final judgment, like alimony, he or she must return those benefits prior to asserting the Motion. Otherwise, that party would be estopped or legally prevented from asserting the Motion. White v. White, 274 Ga. 884 (2002). 

Seeking post judgment relief in any matter is a very complex matter, so it is very important for anyone seeking any form of post judgment relief in their matter, whether it is an Appeal, a Motion to Set Aside, or a Motion for New Trial, to consult with one of our Georgia family law lawyers to ensure that every possible outcome is evaluated.