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Can you get the family court to set aside a divorce decree on grounds of fraud?
What if your spouse sends the divorce complaint to the wrong address and then serves the complaint “by publication” using your maiden name instead of your married name, so your spouse can avoid questions about his second, bigamous marriage and so he can avoid dividing the marital property with you?
Those were the allegations in Sanders v. Smith, decided August 26, 2020, where the Court of Appeals found 1) that there was sufficient evidence to support the family court’s denial of the Wife’s request to set aside the divorce decree, but 2) the Husband committed fraud on the court by alleging in his complaint that the parties had already divided their property, and so the Wife should be permitted to ask for equitable division of the marital property.
Rule 60(b) of the SC Rules of Civil Procedure authorizes the court to set aside a divorce decree (or any final judgment, order, or proceeding in any civil case), based on fraud committed by the other party:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud, misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.
The burden of proving the fraud, however, is on the moving party – the person who wants the court to set aside the divorce decree – and it requires proof by clear and convincing evidence (more proof than a “preponderance of the evidence,” which is used in most civil matters, but less proof than “beyond a reasonable doubt,” which is used in criminal trials).
In Sanders v. Smith, the Court of Appeals found that there was enough evidence to support the family court’s finding that there was no fraud requiring the Court to set aside the divorce decree, but they did find that there was evidence of fraud requiring the Court to allow the Wife to ask for equitable division of the marital property.
Although a motion for relief from a judgment or order under Rule 60(b) usually must be made within a year of the judgment, a motion to set aside a divorce decree based on fraud does not have a specific statute of limitations and must be made within a reasonable time:
“On motion and upon such terms as are just, the [family] court may relieve a party . . . from a final judgment, order, or proceeding” for several reasons, including when the judgment is void or for fraud upon the court. Rule 60(b), SCRCP. When the movant alleges the judgment is void or that the nonmoving party engaged in fraud upon the court, the motion must “be made within a reasonable time . . . after the judgment, order or proceeding was entered or taken.” Rule 60(b), SCRCP (emphasis added); see also Chewning v. Ford Motor Co., 354 S.C. 72, 80, 579 S.E.2d 605, 609-10 (2003) (noting “[t]here is no statute of limitations when a party seeks to set aside a judgment due to fraud upon the court”).
In Sanders, the Court noted that:
The Court found that she filed her request to set aside the divorce decree within a reasonable time. The Court then:
1) affirmed the family court’s denial of her motion to set aside the divorce decree because there was evidence in the record below that supported the family court’s conclusion that the Husband did not commit fraud by intentionally failing to serve the complaint on the Wife, but
2) found that the Wife is entitled to seek equitable division of the marital assets and military benefits because the Husband did commit fraud by misrepresenting to the Court that the assets had already been divided.
Although the Court of Appeals did not order the family court to set aside the divorce decree itself, the Court of Appeals did find that the Husband committed fraud upon the court by falsely stating that the marital property had previously been divided:
Nevertheless, we conclude the family court erred by failing to find Husband committed fraud upon the court in representing the parties had previously divided all property. The record contains no evidence the parties had in fact divided all of their property. Accordingly, we find the evidence shows Husband intentionally misrepresented the truth when he alleged this in his complaint, and we vacate this provision of the divorce decree and conclude Wife is entitled to bring an action seeking equitable division and military benefits.
Note that the Court of Appeals is not saying that the Husband didn’t commit fraud when he served the Wife by publication – they are saying that there was some evidence in the record below to support the family court’s finding that the Husband didn’t commit fraud as to the service of the complaint (remember the standard of proof is high – clear and convincing evidence).
The Court of Appeals reviewed the evidence presented in the family court below, which left room for the possibility that the Husband was genuinely confused as to which last name the Wife would be using and what her current address was at the time of service of the complaint.
The Court of Appeals found no evidence in the record below, however, that the parties had divided their marital property as the Husband claimed in his complaint.
If you are considering a divorce or separation from your spouse, or if you need an attorney that you can trust with complex family law issues (such as a spouse committing fraud on the court to obtain a default divorce from you), call your SC divorce attorney at Axelrod and Associates now at 843-916-9300 or send us a message through our website to find out how we can help.
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