Set Aside of Prior Support Orders

ATTORNEYS GUIDING ATLANTA RESIDENTS THROUGH FAMILY LAW MATTERS

Once a court enters an order, it is generally final, subject only to appeal to a higher court. However, under limited circumstances, a party bound by the court order may seek to “set aside” the order. Essentially, a motion to set aside a court’s order asks the judge to make the order inoperative and thus return the case to where it was before the order was issued. This form of relief may be granted under certain conditions, and, in family law, a motion to set aside an order will often arise in the context of support orders. If you need advice on seeking to set aside a support order, the lawyers at Rowsey & Stelter can assist you. Atlanta residents and other people throughout Georgia have enlisted our guidance in these complicated family law matters.

SEEKING TO SET ASIDE A PRIOR SUPPORT ORDER

The issuance of a divorce decree settles all matters related to the dissolution of a marriage, including the division of assets and debts, alimony (spousal support), child custody and visitation, and child support. For the most part, these matters are settled with finality, although seeking modification of an existing order with respect to child support, spousal support, or child custody and visitation is common, particularly if financial circumstances change for one or the other party.

Sometimes, however, a court will enter an order in which some sort of error or defect exists. In such cases, a party may be able to file a motion to set aside the order. Under Georgia law (OCGA 9-11-60(d)) a Motion to Set Aside an order may be granted in three circumstances.

The first is if the court lacked jurisdiction in the case. Jurisdiction refers to the power of the court to hear a case. There is both personal jurisdiction and subject matter jurisdiction. Personal jurisdiction refers to jurisdiction over the parties in the case, while subject matter jurisdiction refers to the power of a court to hear certain types of cases. In family law, there are specific requirements for personal jurisdiction, including residency requirements, and family law courts can only decide specific matters related to family law, but not other matters.

A set aside motion also may be granted if the moving party can demonstrate that the judgment was based on fraud, accident, or mistake. In family law, and specifically with respect to support orders, an example might be if one of the parties purposefully misrepresented the amount of income or assets he or she had available for support, and thereby committed a fraud upon the court. Another example might be if the final order misstated the terms of any support amount.

The final situation in which a set aside motion may be granted is if the judgment was based on a defect in the record or pleadings in the case, and the nature of the defect was such that it could not by law be amended.

Importantly, if a party is seeking to set aside a judgment has benefited from the judgment, that party must return those benefits prior to filing a Motion to Set Aside.

Motions to set aside are often sought by parties who have been subjected to default judgments for child support orders. A default judgment is entered when only one party appears in court and thereby wins the case by default. However, a defaulting party may have a valid reason for failing to appear. For instance, that person may never have received notice of the hearing. If a party can demonstrate that the default was due to an error or mistake, he or she can file a Motion to Set Aside that, if granted, will allow the moving party to respond to the pleadings as if the default had not occurred.

DISCUSS YOUR OPTIONS DURING DIVORCE WITH A KNOWLEDGEABLE ATLANTA LAWYER

For nearly every court proceeding, there are many rules and deadlines that may apply, and a Motion to Set Aside is no exception. If you have received a court order regarding support that you believe is defective or in error, it is critical that you take the proper steps to challenge that order. You can contact one of our Atlanta attorneys to discuss a child support or alimony order at (770) 993-5317, or you can use our online form to set up an appointment with Rowsey & Stelter. We have represented individuals in Johns Creek, Alpharetta, Roswell, and other communities across Fulton, Cobb, and DeKalb Counties.