Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)
314.727.4880

Man Secretly Divorced Has Options For Getting His Marriage Reinstated

Last week’s column recounted the fascinating tale of a man who was divorced “secretly”—that is, without his knowledge and without his ever appearing in court. At least, that’s the story related by his sister, Kristen, in an email to me.

 

According to Kristen, the wife filed for divorce and her brother hired a lawyer, but within a few weeks, the wife announced that she wanted to work things out, so they moved back in together. All seemed to be going well for several months, and the brother never heard another word about the divorce until his wife announced to him over dinner that “we’re divorced”.

 

It seems that she never withdrew her petition. The brother, though, thinking all was good again, didn’t respond to her petition, thus placing him in default with the court, and never retained a lawyer. Once in default, the court stopped communicating with him, but that didn’t stop the court from scheduling a hearing to finalize the divorce.

 

With the husband still AWOL at the hearing, the proceeding would be pretty perfunctory. The wife would have testified as to the state of the marriage. In Missouri, she would say that the marriage was “irretrievably broken with no reasonable likelihood of being saved”. She would have been asked on what date she and her husband separated and would likely have testified about their original parting date, without mentioning that they had since reunited. Her statement of income and expense, statement of property, and her proposed parenting plan would all have been accepted into evidence.

 

That would be it. The judge might have ruled from the bench or taken a few days to issue the decree. In any case, it was shortly after the hearing that his wife gave her now ex-husband the news. She informed him that she had been awarded most of their property, full custody of their little girl, and child support, payable by him. All in all, it was not a very good day for Kristen’s brother.

 

So what is he to do? His best opportunity for turning this around would have been to file a motion to set the judgment aside within 30 days of the court’s decision. He could tell the court that he and his wife were still living together as “man and wife”, thus undermining one of the fundamental criteria for dissolving a marriage, while also pleading that he was not at fault because he had been led to believe by his wife that she was not going forward with her petition.

 

The brother did hire a lawyer and file a motion with the court, but not until almost six months had elapsed. Perhaps the court rules are more lenient in the state where he lives than in Missouri. But if not, his next best option would be filing motion asking the decision to be set aside because it was adduced by fraud. He should point out the fraud’s multiple elements: his wife purposely kept hidden that she was going ahead, and she fraudulently led the court to believe that the two of them were separated, and that there was no reasonable chance that the union could be preserved, despite the fact that the two of them were living together at the time!

 

If Kristen’s brother lived in Missouri, I believe his chances for getting the divorce overturned and the marriage reinstated would be good. Of course, if he asked my opinion about what to do after that, I’d urge him in the strongest terms possible to hire a lawyer and get himself divorced all over again the old fashioned way, with him in court and with his attorney at his side.