Can The Decree Be Set Aside?
A family law judgment may be modified by filing a new “Petition” with the same case number: a new action called Petition to Modify. In order to demonstrate that a family law order should be changed, you have to demonstrate that there has been a significant and “material change in circumstances” since the time of the original order or decree. For example, if a party suffers a significant and permanent financial setback, or the other party has significantly increased their income, a party might petition the court to modify the child support or alimony orders, demonstrating that there has been a significant and material change in circumstances since the time the decree entered. Depending on the circumstance, however, the court may require that the changed circumstance was not foreseeable and was not taken into account at the time the original decree entered.
If the requested change would impact the best interest of children, the court will also require that the request to change requires a showing that the change would be beneficial to or in the best interest of the children. Technically, if a significant and material and unforeseen change in circumstances occurs, the court has the discretion to modify almost any of its orders in a family law setting. However, the court is extremely unlikely to modify orders relating to the division of debt, the award of property, the award of retirement assets and those kinds of things. The most common modifications made by a court are to custody, visitation, child support or alimony.
What Are Potential Consequences if I File a Request for Order to Set Aside Without Good Reason?
If a party files a request for an order to set aside without a good reason, the judge can award the other side attorney’s fees. Although the court might have the discretion to award other sanctions, attorney’s fees is by far the most common.
If the Judge Grants an Order to Set Aside, Appeal or Reconsider, Does It Mean We Have to Start Over?
It the judge grants an order to set aside, appeal or reconsider it does not really mean we have to start over. The court can still make use of the previous evidence, pleadings and information that were filed or considered in the past. However, the court will consider the additional information presented that necessitated the successful motion to set aside or amend its ruling or the decision of the appellate courts. The case is not set all the way back to the beginning.
If a petition to modify is filed, the parties are given fresh “discovery” deadlines and new opportunities to litigate at least those matters they are seeking to modify. Sometimes, Utah Supreme Court or Utah Court of Appeals may simply reverse a judge’s ruling.
However, it’s just as common for the appellate courts after a successful appeal to remand the case back down to the town judge and require the judge to analyze or consider this ruling in a different way. If an appellate court remands the case back to the judge for a different ruling, the judge must take a second crack at it. His ruling must be consistent with the directions of the appellate court.
How Long do I Have to File for Relief from a Family Court Order or Decision?
If the relief you’re requesting is based on the first three grounds referenced in the rule 60(b), which we have discussed previously, the motion for relief must be filed within 90 days. If the relief you’re seeking is under rule 52 or 59, which we discussed previously, the motion must be filed within 28 or 30 days. Appealing a court’s final decision has its own specific deadlines that I won’t go into. Filing a petition to modify custody or modify a court’s family law ruling has no specific timeframe attached. Similarly, if a motion for relief under the last three grounds of rules 16(b) is made, no specific timeframe is attached.