Q: Should I pursue bill of review or set aside default judgment due to ex-spouse's misconduct in divorce?
I found emails between my ex-husband and his attorney where they conspired to keep me unaware of court dates, acting surprised when I attended. On the final court date, which I found through an online search, I agreed in desperation to a $60,000 settlement due to financial constraints. My ex-husband had restricted my finances to a $300 monthly allowance, leaving me without a car and damaged credit. During the divorce, I was suffering from PTSD, had just been released from a mental institution, and was undergoing treatment for tumors at MD Anderson. These factors impaired my ability to make clear decisions. I have ongoing medical issues, including PTSD, anxiety, and panic attacks, and I have been involved in several car accidents. My ex-husband also hid financial details like his 401(k) during discovery. The judge ordered mediation, and during mediation, my ex-husband argued relentlessly, intending to settle for just $16,000 if I hadn't shown up. His attorney insulted me, and their conduct has been unethical throughout. Given this context and the evidence I possess, should I pursue a bill of review or file a motion to set aside the default judgment?
A:
You can pursue a bill of review if you can prove that your failure to appear or answer was the result of extrinsic fraud or official mistake without any negligence on your part and the time to pursue other remedies (like a motion to set aside the default judgment) elapsed before you first acquired actual knowledge that the default judgment had been granted.
If the time to pursue other remedies has not already expired, you should pursue another available remedy instead of a bill of review. If you have time to do so, the most generous and easiest remedy from the entry of a default judgment is a motion for new trial. Normally, the time to file a motion for new trial is 30 days from the date the default judgment was signed UNLESS you did not receive notice within 20 days of when it was signed.
There are some complications raised in your question such as mention of a settlement and you attending mediation which suggest that the judgment entered was not a default judgment but rather an agreed judgment possibly reached after mediation. Neither a bill of review nor a motion to set aside a default judgment are appropriate ways to attack an agreed judgment.
If you want to attack an agreed judgment that is based on a mediated settlement agreement as a result of your medical and mental conditions, you will need clear evidence from a medical expert that you were not mentally competent during mediation when you entered into the agreement or at any time prior to the entry of the judgment based on such an agreement but that you are mentally competent now. PTSD, anxiety, panic attacks, and certain types of cancer treatment can--but do not always--render a person mentally incompetent to make decisions and to understand the consequences of those decisions.
So you should schedule a consultation with an attorney experienced in family law and appeals in or near the county where the judgment was entered as soon as possible. Any remedy you may have does have a time limit. You should anticipate that such a consultation will cost you $500-1,000.
Justia Ask A Lawyer is a forum for consumers to get free answers to basic legal questions. Any information sent through Justia Ask A Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between Justia and you, or between any attorney who receives your information or responds to your questions and you, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask A Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises, or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
