VACATING A JUDGMENT FOR DISSOLUTION OF MARRIAGE AFTER 30 DAYS

http://www.dreamstime.com/-image23075A Judgment for Dissolution of Marriage is a final and appealable Order of Court.  A party can seek to vacate said Judgment within 30 days pursuant to 735 ILCS 5/2-1301 “upon any terms and conditions that shall be reasonable.”  After 30 days, any request to vacate a Judgment would fall under 735 ILCS 5/2-1401.  Pursuant to that statute, a party must show, based on a preponderance of the evidence, (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim in the original action; and (3) due diligence in filing the petition.  Smith v. Airoom, 499 N.E. 2d 1381 (Ill. 1986).  The decision regarding whether to grant or deny a petition to vacate lies within the sound discretion of the court and depends upon the equities involved and the facts presented.  Pirman v. A&M Cartage, Inc., 215 Ill. App. 3d 993 (1st Dist. 1996).

In a recent case in In re Marriage of Little, 2014 IL App (2d) 140373, the husband argued that the wife had lied during the dissolution proceedings regarding the transfer of assets from the marital business to her brother.   The Husband found out after the Judgment for Dissolution of Marriage was entered that the Wife had in fact transferred funds from the marital business to her brother and acquired 40% ownership in her brother’s company. The trial court granted a Motion to Dismiss the petition and Husband filed a timely appeal. The reviewing Court reversed the trial court and stated that Husband had pled enough facts to show that he had a meritorious claim.  The case was remanded for further litigation regarding the actual merits of the petition.

The Little case shows the complexity of 735 ILCS 5/2-1401 petitions especially when faced with a Motion to Dismiss for failure to state a claim.  However, if the facts are sufficiently pled and in situations where a party clearly lied or misrepresented facts in the divorce proceedings, and as long as the motion was brought soon after discovering the fraud, a judge should vacate the judgment.

 

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