Motion to Set Aside
What is a Motion to Set Aside in Divorce?
Have you ever wondered if it was possible to have the final judgment in your divorce "set aside" so that it is no longer operative? This is the purpose of a Motion 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:
- The judgment being attacked was based on a lack of personal or subject matter jurisdiction.
- The judgment was based on fraud, accident or mistake.
- The judgment was based on a non-amendable defect that appeared on the face of the record or pleadings in the case.
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. 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 experienced Atlanta divorce lawyers to ensure that every possible outcome is evaluated. At Meriwether & Tharp, we have lawyers that focus their practice on family law and divorce post judgment relief and appeals.
You Cannot File if you Received Benefits
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.