How a Divorce Lawyer May Correct an Erroneously Entered Order

A nightmare for a divorce lawyer is when an order is entered that is erroneous. This requires the attorney to figure out how quickly to undo the order. This problem is most often encountered by a family law attorney because they do litigation without the presence of a court reporter that is able to document everything that is said. Therefore, when an order is written and entered that was not the consent of the parties, it can be become difficult to undo this as there is no transcript to fall back on in support of the position that what was ordered was not what was agreed upon. So, what should be done?

The first thing is to contact the other divorce lawyer immediately upon discovering the problem in order that some sort of consent can be reached with the court to undo the judgment entered and replace it with what the parties originally agreed to. Alas, the practice of law is not always so simple: one party may like what was ordered but not agreed to and wish for it to remain in place. Or, the other attorney may not be readily available.

Barring some sort of consent, there are a couple of steps for a divorce lawyer to correct the error. Perhaps the first step is to file a motion to vacate the original order. While this would have the effect, if granted, of terminating the previous erroneous order, it would not be able to establish the order that the parties originally consented to. For this, another motion for what was originally moved for would have to be put before the court. The opposing divorce lawyer might file an exception (an action to try to defeat) this motion on the grounds of res judicata - meaning that at court has already ruled on the matter. And it will be up to the trial court judge to determine whether the matter was actually litigated and decided or whether the court entered an order erroneously and therefore the original motion was never ruled upon. In other words, two motions and at least one court hearing, if the parties are unable to agree that an error was made that, in fairness, needs to be corrected.

If there is a transcript, the procedure should be somewhat simpler and certainly less stressful for the divorce lawyer. Here the attorney would probably simply have to file the same motions as those listed above, but submit a copy of the judgment of the court transcript that shows the error. It may even be possible to have a conference with the judge or their staff along with the other attorney to determine whether a hearing is even necessary.

If a judgment is submitted to the court pursuant to a 9.5 certificate, you should probably submit an objection to this, along with a proposed alternate judgment of what was your understanding of what was consented to or ordered by the court.

Will Beaumont practices law in New Orleans. This article is informational, not legal advice.