– from Timothy S. in Fox Point, WI

Question Details:

My wife and I have been separated for almost a year. I recently received notice that we are getting a divorce and she informed me that basically she is getting a larger share of our joint finances and property. She claims that she had me served notice at the last location she knew of, which is untrue. She knew where I was residing at the time and I believe she purposefully had the sheriff serve them at the wrong location. She then published a summons in the newspaper, which I also never saw. We are now days away from the divorce and final judgment being handed down. Can I have the divorce judgment vacated if I did not receive notice in time?

Family Law Attorney Response:

This is a difficult question to answer for divorce cases because it really could go either way. If somehow you were able to prove that she had you served at the wrong location purposefully, you may have a case. You would have to demonstrate to the court that she did not exercise reasonable diligence in attempting to affect personal service.

In the case of Emery v. Emery 124 Wis. 2d 613, 369 N.W.2d 728 (1985), the husband attempted to have the judgment vacated under similar circumstances. The trial court denied the motion. He appealed, and the court of appeals reversed the trial court's decision. The wife petitioned the supreme court for review, and they reversed the decision of the appeals court, reinstating the trial court's decision. In part, this decision was based on the husband failing to establish sufficient evidence that the wife did not exercise reasonable diligence. However, if this can be achieved, you stand a significant chance of the judgment being vacated.

My advice is to contact a family law attorney right away to discuss the details, and plan the best course in which to proceed.

Dan Exner, J.D.

Family Law Attorney

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