A motion to vacate a judgment, or petition to vacate judgment, is a specific request made by one of the parties to a lawsuit or other legal proceeding to a court to withdraw a judgment or order that the court previously entered. Generally, a motion to vacate judgment may be granted to a party to a lawsuit who can show that they did not have a proper chance to present their side of the case in the action. Such motions may be common in major family law cases, such as those involving divorce, child custody/visitation, and other issues.

Motions to vacate may also be used if a default judgement has been entered in a lawsuit. A default judgment is entered when the person who has been sued never answers the complaint and never appears in court in connection with the lawsuit. Sometimes, it might happen that a person who has been sued does not receive notice of the lawsuit, so was not aware of the proceedings. Trying to vacate a default judgment if a person can show that they were never served in the action has a good chance of success.

A motion to vacate must be filed within a reasonable time after the judgment was issued. Depending on the legal issue involved, filing a motion to vacate could be allowed from 30 days to 1 year after the date the judgment was entered. A person would want to check with a lawyer to ensure that their filing of the motion will be considered within the applicable time limit.

Or, if a person wants to proceed on their own, they need to check the rules of the court which entered the judgment to see what they say about time limits for filing a motion to vacate. And then, the person wants to proceed as the rules direct. A person should never expect a court to make exceptions in their case.

In addition to being filed within the applicable time limit, a motion to vacate judgment must be based on a valid legal reason. If the motion is filed and the court considers it to be “frivolous”, they might dismiss the motion and order the person to pay the costs and fees incurred by the other party in responding to the motion.

When Can a Motion to Vacate Judgment Be Granted?

Probably the most common situation in which an order vacating judgment can be granted is when the person or party did not receive the legally required notice regarding the lawsuit or other legal action, e.g. a motion for a restraining order, when the lawsuit or action was begun.

When a person initiates any kind of legal action against another person, they are required to give the other person notice of the action and a copy of the legal documents involved. This is called “service of process” in legal terminology. If a person can show that they never received service of process, they have a good chance of vacating a judgment in the lawsuit in which they were sued.

After serving a person who has been sued, the person who served the notice must file an affidavit of service with the court, in which the server provides a description of the person served, the date and time at which service was made, and the contact information of the process server themselves, i.e., their name, address, and phone number. The affidavit must also include a statement to the effect that the server is legally authorized to perform service of process in the state in question.

In some states, a person can be served by certified mail, restricted delivery. In the case of service of process by certified mail, the green certified mail receipt is returned to the court and is the proof of service.

The affidavit of service of process is an important legal document. If it is on file with the court, and it provides an accurate description of the person served that matches the appearance of the person who was sued and against whom judgment was entered by the court, the court is not likely to vacate the judgment. The court would reject the argument that the person against whom judgement was entered was never served with process.

On the other hand, if the person against whom judgement was entered can convincingly show that they were never served with process, then they have a chance of getting any judgement against them vacated.

Other reasons for which a judgement can be vacated depend on the law of the state in which the motion is filed. Some of the situations in which a motion to vacate judgment might be successful in most states include:

  • Clerical Mistakes: A judgement is a written document so it it contains oversights, omissions, or mistakes of some kind, it might need to be vacated and corrected;
  • Erroneous Proceedings: The person against whom judgment was entered might show that the legal proceedings leading to the judgment were against a minor or other person deemed to be of unsound mind and who cannot, therefore, be sued;
  • Newly Discovered Evidence: The person against whom judgment was entered would need to show that some significant evidence has just been newly discovered. Further, they would have to show that the evidence could not have been discovered in time to make a motion for a new trial before the judgment was entered;
  • Fraud, misrepresentation or other misconduct: If the person against whom judgment was entered can show that the other party engaged in fraud, misrepresentation or other misconduct of some kind in the course of the proceeding leading up to the judgment, the judgment could be vacated;
  • Void or Satisfied: If a judgment has already been voided for some reasons or has already been satisfied, i.e. paid, if it called for the payment of money, it might be vacated;
  • Death of a Party: One of the parties may have passed away before judgment could be completed;
  • Other Reasons: Any other reason that might justify a relief from the judgment could be claimed.

The law in each state provides the rule and guidelines regarding motions to vacate in that state. Also, details may vary depending on the case. For example, the criteria may be different for motions in family law matters, such as a spousal support case as compared to a child support case. They might be different again in a debt collection case where a person wants to vacate a judgment of debt owed.

What Are the Steps for Filing a Motion to Vacate Judgment?

As noted above, there are deadlines for filing a motion to vacate. So, it is critical for a person to act promptly and not wait if they believe a motion to vacate is appropriate in their case. The first thing to do is to secure from the court that entered the judgment, the various forms and documents needed for filing the motion. Today, most courts have forms for this purpose. If not, a person would probably have to have the assistance of a family law lawyer or civil trial lawyer who is familiar with procedures in the local civil courts.

But, generally courts provide documents for the purpose of filing a motion to vacate. After obtaining the necessary forms, a person would need to fill out the forms and obtain the proper signatures, usually from a judge or commissioner. Next, the person would need to file the papers with the court and serve them to the other party.

Depending on the reason for which a person seeks to vacate a judgment, they may need to include other documents, such as a declaration, with the motion. The declaration might be the person’s statement under penalty of perjury as to why the motion should be granted. If a person submits a declaration, the person must state detailed facts to convince the judge to vacate the judgment or other order.

A person might fill out and file their own declaration with their motion. Or, another person, such as an experienced trial lawyer, might help prepare the declaration on the person’s behalf. A declaration is not the place to state opinions or arguments, but rather to present the facts of a person’s case. The facts should be presented as numbered statements. It can be broken into sections if the facts address different topics.It should be as clear and well organized as possible.

A person should be sure to keep copies of all documents including declarations and other papers submitted to the court. Again, all documents filed with the court must be served on the other party to the lawsuit. The law gives the other party the right to know about and respond to every document that one party has filed.

The court in which the motion is filed will hold a hearing on it. At the hearing, both sides are given the opportunity to make their case, one for and one against, the motion. As mentioned, a person should make sure there is a sound legal basis for the motion; otherwise, the motion may be denied and the person may even be responsible for paying the legal fees that the other party incurred in opposing the motion.

Do I Need a Lawyer for Help with a Motion to Vacate Judgment?

Vacating a judgment is not something a court does lightly. So making the case for it is a challenging task. You may need to hire a child custody lawyer in your area, if you are considering filing such a motion in a family law matter, e.g. a restraining order, or an order regarding child custody or child support.

Remember, motions to vacate a judgment or order can only be filed for specific, valid legal reasons. Your attorney can research the laws in your area to determine what your options are in terms of motions. Also, your lawyer can help file the motion and can represent you at the hearing on the motion.

If your case involves a matter that does not involve family law, for example, it involves collection of a debt that you contest, then you should consult a collection lawyer, or an attorney who is experienced in civil trials for guidance and assistance.