Motion to Set Aside Order

by Karen from Broward County, Florida

I missed my court date for custody of my 1 yr old son. His father and I are not married, I recently moved and never received documentation of the court date. What do I do?

We live in Florida. Need some guidance please tell me if there is anything I can do.

Answer to Florida Court Forms Question

Dear Karen,

If there was an order resulting from the hearing that you missed, you could file a motion to set aside that order based on the fact that you were not notified of the hearing.

However, it is up to you to make the clerk of court and the other party aware of your current address. So, you may not be in a position to demand.

However, if the other party knew you had moved, and knew your new address, but sent it to your old address anyway, then he is in the wrong. But, it is your responsibility to manage your case, and check with the clerk of court to find out if anything was filed.

If your ex had filed a Supplemental Petition to Modify Child Custody/ Time-Sharing Schedule and Other Relief, he should have notified you by personal service. A sheriff or private process server should have knocked on your front door and handed you the documents. If that is what happened -- you did not receive notice of a Petition to Modify -- then you are in good standing and well within your rights to demand a new hearing.

So you see, it depends on whether you missed that Notice of Hearing after and separate from being served with the Petition; or whether the hearing notice was already scheduled and part of the documents which you should have been served with. Either way, you could file a motion to set aside the order.

Notice: We provide these answers to the general public and our website visitors as a means to further their online legal research. These answers are merely suggestions and should not be regarded as legal advice.

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Comments for Motion to Set Aside Order

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Trying to Set Aside or Vacate Judgment
by: Anonymous from Florida

...I have been attempting to vacate the divorce settlement and sue my lawyer for malpractice. My new attorney says she never saw anything like it. I had 3 attorneys including my own and my personal/corp attorney working against me. My divorce attorney says he has no insurance and I can't find an attorney to sue on contingency. Much of the fraud I had can't be used to vacate because I had an attorney who didn't address it at the time. I can't prove he was involved other than gross negligence. What he did I am sure is illegal but without proof I don't know what to do.

Recovering money is the best outcome for me of course but if nothing else what he did was criminal. Can you suggest what I should do and who to turn to for help so he doesn't walk away scott free? My current malpractice attorney is waiting on interrogatory answers as we think he may be lying about insurance. If he is not though he doesn't want to pursue it saying attorneys make themselves judgment proof so nothing can be recovered. I haven't reported him to the bar yet because of the potential of the malpractice followed through on but he needs to be held more accountable than it.

--It sounds to me like your present attorney has things under control. I would definitely follow his advice on this issue. --Staff

But Where To Go If No Insurance?
by: Anonymous

My attorney only has it under control if it turns out he has insurance. If not he is done. I am looking to be prepared should this turn out to be the case.

--You can still go forward with a formal complaint to the Florida Bar. --Staff

Need More Than a Complaint
by: Anonymous

I am aware of my ability to file a complaint and have it ready but am holding off until we find out if he is telling the truth regarding insurance. My problem is because of him I literally lost everything I worked for in 30 years, including my IRA and that will not help recover any money.

--It sounds to me that you are doing everything you can. Hopefully your current lawyer will be able to get you some justice. Good luck. --Staff

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