As a general rule, a divorce decree can only be set aside in Georgia within three years of the divorce decree having been entered. OCGA § 9-11-60(f) establishes the exclusive time limitation for when a judgment is attacked by a motion to set aside. Importantly, the statute provides that a judgment void for lack of subject matter or personal jurisdiction may be attacked at any time, but further states that in “all other instances,” a motion to set aside a judgment must be filed within three years of entry of the judgment.
The 2016 Georgia Supreme Court case of Myles v. Myles, 300 Ga. 261, 794 S.E.2d 56 (2016) discusses when it is appropriate to set aside a divorce judgment. The court reversed the judgment of the trial court; the trial court had granted wife’s motion to set aside the final judgment and decree of divorce due to husband’s misrepresentations about income and ownership in real property. Although the grant of the motion to set aside seemed proper on its face, the motion to set aside was filed more than three years after the final judgment and decree of divorce, well outside of the three-year statute of limitation.
The trial court incorrectly held that the statute of limitation started to run upon wife’s knowledge that husband possessed certain undisclosed assets. O.C.G.A. § 9-11-60(f) states that a motion to set aside must be brought within three years of a judgment, not within three years of a party’s knowledge of a reason to attack that judgment. A judgment may only be set aside outside of the three-year statute of limitation period when a party seeks to set aside the judgment for lack of subject matter or personal jurisdiction. Since wife did not allege that the final judgment and decree should be set aside due to the absence of subject matter or personal jurisdiction, the court ruled that her motion to set aside divorce must be dismissed despite its perceived merit.
Due to the potential time limitations and implications, it is highly recommended that you consult with a Georgia divorce attorney or law firm if this is a situation you are facing.