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Absolute Divorce 7 yrs Ago Nullified?


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#1 daverse

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Posted 27 November 2012 - 04:18 PM

My girlfriend's grandmother divorced her ex-husband in Washington, DC 7 yrs ago. He is now filing to get the divorce nullified claiming that he was never served. Prior to the actual divorce he moved out of the house they were living in(3 yrs before the divorce). Last year my Girlfriends grandmother decided to list the house(they lived in together which she bought and made all the payments on) for sale. Shortly after that he came by the house and then went to court to get the divorce nullified. My girlfriend's grandmother was granted an "absolute divorce" even though the guy did not appear in court. My girlfriend's grandmother and her ex went to court and though it made no sense to me they have another hearing in December. His claim is that he was never served and we believe he is trying to find a way to get his name back on the deed in order to profit from any future sale of the house.

Questions:

Does he(my girlfriend's grandmother's ex-husband) have any legal basis for getting the divorce nullified even though they have been divorced for 7 yrs? If he does, why?

Does he have rights to the house or any proceeds from the sale? If he does why? (Key information: She made all the payments, she bought it before she met him, she had his name removed from the deed and I do not believe it was ever on the mortgage)

Is there some type of statute of limitations on how long someone has to challenge a divorce in DC?

#2 adjusterjack

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Posted 27 November 2012 - 06:37 PM

Does he(my girlfriend's grandmother's ex-husband) have any legal basis for getting the divorce nullified even though they have been divorced for 7 yrs? If he does, why?

It's possible. A divorce is the equivalent of a lawsuit and the decree is the equivalent of a judgment. In order for the decree to be valid the Respondent would have had to have been properly served with the original Petition.

Judgments (or decrees) can be set aside if the Defendant (Respondent) was not properly served.

Is there some type of statute of limitations on how long someone has to challenge a divorce in DC?

Court rules generally require that a motion for relief from judgment be file within a specific amount of time based on the grounds for the motion.

Here's a sample from the Federal Rules of Civil Procedure:

GROUNDS FOR RELIEF FROM A FINAL JUDGMENT, ORDER, OR


PROCEEDING. On motion and just terms, the court may relieve a


party or its legal representative from a final judgment, order, or

proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence,

could not have been discovered in time to move for a

new trial under Rule 59( B);

(3) fraud (whether previously called intrinsic or extrinsic),

misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged;

it is based on an earlier judgment that has been reversed or

vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

©

TIMING AND EFFECT OF THE MOTION.


(1)

Timing. A motion under Rule 60( B) must be made within


a reasonable time — and for reasons (1), (2), and (3) no more

than a year after the entry of the judgment or order or the

date of the proceeding.

(2)

Effect on Finality. The motion does not affect the judgment’s


finality or suspend its operation.

(d)

OTHER POWERS TO GRANT RELIEF. This rule does not limit a

court’s power to:

(1) entertain an independent action to relieve a party from

a judgment, order, or proceeding;

(2) grant relief under 28 U.S.C. § 1655 to a defendant who was

not personally notified of the action; or

(3) set aside a judgment for fraud on the court.

As you can see, there is virtually no time limit if the grounds are that the Respondent was not properly served. I think that the federal rules apply to all DC courts but even if they don't, the DC rules should be similar. If the ex can prove he was not properly served and had no opportunity to participate, then the decree could be set aside and the Petitioner would have to do it all over again.

Does he have rights to the house or any proceeds from the sale? If he does why?

Whether he would be entitled to any of the proceeds from the sale would be up to the court to decide. It would be a separate issue of property division for the court to rule on.

(Key information: She made all the payments, she bought it before she met him, she had his name removed from the deed and I do not believe it was ever on the mortgage)

That, in itself, doesn't change the possibility that he might have an equitable interest in the property. He would have that interest just by being married to her.

Where that information would come in handy would be in determining the amount of his share of the proceeds.

I don't know how the smileys got in there or why the text pasted so small.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#3 Ted_from_Texas

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Posted 27 November 2012 - 08:08 PM

The divorce itself cannot be "nullified" (by which I assume you mean your girlfriend's grandmother and her ex would no longer be divorced). That would be way too complicated a legal construct to consider.

However, under certain circumstances the divorce settlement with respect to the property division could be reopened and renegotiated. Whether that will actualy happen depends on facts not apparent in your message. Did your girlfriend's grandmother list the property on the inventory of assets at the time of the divorce? If not, and if the ex can demonstrate improper service, he could possibly be entitled to a share of the proceeds of the sale. The fact that Grandma purchased the property and made the payments herself does not override the fact that the house was the marital residence and the payments may have been made with marital funds. Grandma needs to be speaking to a local family law attorney.

#4 Guest_FindLaw_Amir_*

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Posted 28 November 2012 - 07:37 AM

I agree with the previous poster, grandma may wish to consult with a local Family Law Lawyer. For more information on this subject matter, you may visit the Family Law Center as a good resource.

#5 pg1067

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Posted 28 November 2012 - 07:44 AM

I generally agree with the prior responses. There is important information missing regarding the property.

In terms of "re-opening" the property division portion of the judgment, your post is silent regarding whether service actually was done properly. One assumes that grandma must have filed a proof of service in order to get the divorce decree entered, right? Presumably the ex-husband's motion takes some issue with the correctness of the proof of service. What is his argument (other than "I never was served")? With respect to the timing, one would need to research case law regarding situations in which the defendant/respondent was not properly served, but I have serious doubts that a motion would be granted after seven years.

Needless to say, grandma needs to be speaking with a local family law attorney.

#6 daverse

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Posted 29 November 2012 - 11:02 AM

Thanks everyone. I directed my girlfriend's grandmother to a lawyer and explained to her what I found out from you guys. In doing my own research I did learn that DC is not a community property "state". I also learned that once an absolute divorce is granted they cannot go back and argue about the division of the property. Thanks again for all of your help.

#7 pg1067

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Posted 29 November 2012 - 11:40 AM

I also learned that once an absolute divorce is granted they cannot go back and argue about the division of the property.


Yes, but that doesn't apply to a situation where the respondent was not properly served and the divorce decree is set aside. Certainly, if the divorce decree is set aside for improper service, the property issue will be up for grabs. That DC is not a community property "state" is neither here nor there.

#8 daverse

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Posted 29 November 2012 - 12:46 PM

Thank you. So he has to prove that he was not properly served. I understand that a reasonable effort must have been made to serve him, if they prove that it was shouldn't that be enough?

#9 pg1067

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Posted 29 November 2012 - 04:23 PM

I think this has all been covered already. In order to have gotten the judgment in the first place, grandma presumably must have convinced the court that she did, in fact, effect service on her husband. Typically, that is done by filing some sort of affidavit of service from the process server who served him (although service can be effected by other means). If ex-hubby wants to claim that he was not, in fact, served, he's likely going to have to do more than say, "I didn't get served." And, as I know was discussed, there is typically a limited time to do this; without researching the issue, I am skeptical that the challenge would be permitted after seven years.

#10 daverse

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Posted 30 November 2012 - 05:31 AM

Thank you all again. I appreciate it.




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