Q: Can a divorce judgment be set aside, or retrial for excusable neglect based on Federal Rule 60
In a divorce judgment can respondent who was wrongly incarcerated, request to set aside a judgment in a divorce ,or ask for retrial, based on Missouri rule 74.06 using excusable neglect, by incorporating Federal Rule 60.
A:
Yes, it is possible to set aside a divorce judgment or request a retrial based on excusable neglect under Missouri law. Here are some key points:
- Missouri Supreme Court Rule 74.06 allows a party to seek relief from a final judgment or order due to mistake, inadvertence, surprise, or excusable neglect. This rule is similar to Federal Rule of Civil Procedure 60.
- To set aside a divorce judgment under Rule 74.06, the moving party (usually the respondent) has to show that their failure to appear or respond was due to excusable neglect and that they have a meritorious defense to the divorce petition.
- Being wrongly incarcerated could potentially qualify as excusable neglect, if the incarceration prevented the party from participating in the divorce proceedings. The court would look at the specific circumstances of the incarceration.
- The moving party would also have to demonstrate that they have valid grounds to contest the divorce, such as challenging the grounds or certain rulings in the judgment related to property division, support, etc.
- Courts tend to scrutinize Rule 74.06 motions closely in divorce cases, but excusable neglect and incarceration provide grounds to argue for setting aside the judgment. Getting experienced legal counsel is highly recommended if pursuing this option.
So in summary, Missouri law does provide a procedural mechanism to reopen a divorce judgment based on excusable neglect under circumstances like wrongful incarceration. The court has discretion whether to grant relief or not based on the facts presented.
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