I was a dependant (on H4 visa) and my husband (H1) filed for our divorce in Charlotte public court without my awareness based on one year separation. He took my sign on a document saying it is for lease agreement and that document doesn’t have any conditions like one year separation etc., so I have signed it
After that he has hidden from me any summons the court might have sent ordering me to attend the court, so I was completely unaware of the divorce process. We both came to India on May 27th and we both are in India right now
On 06/25/2016, He has informed me that the divorce that he has applied in 12/2015 is approved and sent me a copy of the court order documents. After that I have read all the divorce papers and it is written that He has applied for divorce based on one year separation, which is absolutely false
We have lived together in the same house till we left US for India. I have lease related emails, photos etc. proofs showing that we haven’t lived separately one year before the application
My question is, Can I apply to the court for dissolution/revocation of divorce based on the proofs that I have? If I can, how can I proceed?
Regards
Swetha Vadlamudi
Yes, you do have options to overturn the divorce judgment if you believe it was based on false information.
You can file a Rule 60 motion which is relief from a judgment or order. The grounds for this type of motion are mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, etc. Note that in some instances, this motion must be made within one year from the entry of the judgment/order.
You may be able to file a Rule 59 motion for a new trial if the divorce judgment was entered after a trial and testimony versus by summary judgment. The grounds for this type of motion are insufficiency of the evidence to justify the ruling, irregularities preventing a fair trial, etc. Note that this motion must be filed and served within ten days after entry of the judgment/order.
In order to proceed, you will need to file the motion or motions that apply to your case within the timeframe in the same county that issued the divorce judgment. Unfortunately, there are no pre-printed forms for these motions.
Anna, Thank you so much for your valuable information!
As I am right now in India, and might not be able to return to the US on dependent visa(H4) now, Is it possible for someone else who is in US to submit the documents on my behalf?
Also, Could you please give me an approximate list of documents needed for rule 60 & 59 motions?
Thanks!
Swetha
A lawyer would be able to prepare and file the documents for you and appear in court for you. Check with the clerk’s office for the county you will need to file in, but oftentimes the clerks can accept filings by mail. A friend may be able to file the documents that you’ve prepared but would not be able to appear in court for you.
For a Rule 59 or 60 motion, no additional documents are required (as exhibits to the motion) however, it may be helpful to attach your proof to the motion and reference it in the motion itself.
Thanks Anna!
One more thing is, the judgement contains a motion document for summary judgement and notice of hearing. He has given my address for the court to send hearing notice etc., but he has hidden any notices that the court might have sent for me to appear in the court.
What is summary judgement and can I revoke this? Also, how can I prove to the court that my husband has hidden the documents from me, and it was an absolute shock for me to have received the final judgement documents
Thanks
Swetha
Summary judgment is judgment entered as a matter of law and is granted when there is no genuine issue of material fact. This means that the issue before the court can be decided without having to have a trial. Summary judgment is very common for abolsute divorces in North Carolina.
In an attempt to prove that your husband hid court documents from you, you will need to check the court file in your matter to see how he served you, which gives the defendant notice of a lawsuit against them. In order to have an absolute divorce granted, your husband will have had to prove that you were served properly accourding to the statutues. Proper service can be by sheriff deputy, certified/registered mail, acceptance of service, or even by newspaper publication in certain circumstances. Whatever proof of service he had will be in the court file.