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  1. #1
    pdb
    pdb is offline Junior Member
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    Vacate of judgment of divorce decree

    Located in NY

    What is the first step and subsequent steps to be taken in how to vacate a judgment of divorce (in particular, the maintenance portion) which occurred back in 2003 involving a permanently disabled brain injured NCP who was subject to signing separation papers under duress/coercion and mental incompetence due to a severe brain injury?

    Just recently, the CP has petitioned for "Enforcement of order made by another court" of past maintenance (5 years total) as part of a divorce judgment that took place in another county back in 2003, since the NCP was institutionalized in a brain injury center from 4/2003 -- 8/2005.

    Would it be in our best interest to attempt to vacate the original divorce judgment in the original county that the default judgment and award of maintenance occurred in or would it be more advantageous in pursuing this in the new county of residence, where both reside now, but where the CP just recently petitioned NCP into, for this back maintenance?

    Thank you!
    Last edited by pdb; 11-18-2007 at 11:52 PM.
  2. #2
    Ronin is offline Member
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    Since this was so long ago you may be SOL with any attempt to vacate a judgment.

    A court in your new county will have no authority to vacate your prior judgments. The original court will have lost its plenary power to vacate its judgment in this case, and the only recourse may be the appeals courts. However, state courts of appeals have strict timetables and may not be able to exercise jurisdiction even if it wanted to.

    You may petition to modify the judgment if it is warranted in your case, but even if modified it would not be retroactive.

    You will most likely owe whatever maintenance the original decree ordered.
  3. #3
    TinkerBelleLuvr is offline Senior Member
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    What he capable of having made a 'good' decision when he signed the paperwork?
  4. #4
    tuffbrk is offline Senior Member
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    This case sounds similar to the thread where the person was disabled and Ex had him sign the paperwork, the OP had paperwork showing the disabled party was not capable of making a legal/financial decision at the time, the mom was made a guardian or something to that effect -but I can't find it to see if it's the same OP....
  5. #5
    TinkerBelleLuvr is offline Senior Member
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    tuffbrk, I think it's the same one. Seemed to me that he may have been incompetent when he signed the papers (or should have been.)
  6. #6
    tuffbrk is offline Senior Member
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    Ok - that's the same one that I was thinking of so I wasn't sure what if anything had changed to prompt a new post w/out all of the previous detail or an update to the old one. Ya know, sometimes I think it's the hair dye that blurs my brain so thanks for confirming that for me! LOL!

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