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Setting Aside a Divorce Decree when one Party is Unrepresented by Counsel

Setting Aside a Divorce Decree when one Party is Unrepresented by Counsel

Attorneys are generally viewed as an important aspect of the divorce process. And more precisely many litigants believe legal expertise is necessary to protect their best interests and guide them through the legal “minefield” that is sometimes divorce.

On occasion, parties chose to forgo attorneys, such as because the parties feel they can divorce amicably. Other times, the parties agree that only one attorney is necessary to effectuate their agreement, and file the necessary documents with the court.

Where only one attorney is utilized, the attorney may only represent one party. Persons who are divorcing have conflicting interests, in that there are certain rights to property, and if there are children, custody and parenting time issues. An attorney can only represent one party where persons because of the inherent conflict of interest.1

Since the one retained attorney can only represent one client, the unrepresented person in the divorce does not have a legal advocate, and may learn sometime later that documents that were prepared and signed have lasting consequences, or are not what the unrepresented person contemplated.

Generally, except for children, in the case of a divorce, an agreement for a property settlement for example will be upheld if later challenged in court, so long as each party was of sound mind and informed of the agreement they were making. Being unrepresented by an attorney is not grounds for an appeal in a civil case.

Nevertheless, in extreme cases, a party may motion the trial court for relief under the judgment if there is mistake, surprise, excusable neglect, newly discovered evidence (which could not have been discovered in time), fraud, misrepresentation, or misconduct by the adverse party.2 When a party is seeking to set aside a property division, there is a 6 year statute of limitations.3

In McGuinnes v McGuinnes,4 a recent Indiana Court of Appeals case, the trial court found that the Wife had obtained the Husband’s signature on the property settlement agreement by fraud. The basis for the Husband’s claim was that he became (terminally) ill and was placed in hospice care during the pendency of the divorce.

He was unrepresented by counsel, and he asked his Wife to have her attorney draft a property division. His Wife had her attorney draft a property division, and Husband signed it without reading the agreement. Later, Husband recovered from his illness, and learned that the property division was not at all what he had instructed his Wife to have drafted, nor what he had contemplated. The trial court set aside this property agreement.

The Court of Appeals determined that the Wife had actually obtained the Husband’s signature by duress, not fraud, and thus overturned the trial court’s decision to set aside the decree. Meaning, the court of appeals upheld the Decree of Dissolution, holding that fraud and duress are two different legal standards and required different legal evidentiary showings. The trial court analyzed the facts under fraud, which was the incorrect legal standard.

Therefore, absent narrow circumstances, mere ignorance of the law, and failure to obtain an attorney, will not likely result in a reversal of an unsatisfactory divorce decree or property division thereof. Understand that in today’s world divorce is a complicated business transaction in many cases. This blog post was written by attorney Lori Schmeltzer, Ciyou & Dixon, P.C., who practice throughout the State.


  1. Indiana Rules of Professional Conduct, Rule 1.7
  2. Ind. Trial Rule 60(B)
  3. Ind. Code 31-15-7-9.1(a)
  4. McGuinness v. McGuinness, 969 N.E.2d 138 (Ind.Ct.App.2012).
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