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What Is a Motion To Vacate?

A motion to vacate is a request to withdraw a court order.
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  • Written By: Felicia Dye
  • Edited By: Heather Bailey
  • Last Modified Date: 28 July 2014
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    Conjecture Corporation
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Court cases often result in court orders or judgments. Sometimes individuals believe they should not be subject to those orders or judgments because they were not granted fair opportunities to prevent the outcome. In these instances, such individuals may file a motion to vacate, which is a request for a court to withdraw a judgment or order that it issued.

A motion to vacate is not simply a second chance and it should not be confused with an appeal. These are very different legal processes. When a person files an appeal, he basically approaches a higher authority and argues that a lower authority had faulty judgment and asks the higher authority to do something about it. When a person files a motion to vacate, however, he basically returns to the source of the judgment and claims that he did not have a fair opportunity to present his case and, therefore, requests the court to deem its decision void.

Filing such a motion does not require a lawyer. It is wise, however, to at least consult with one or some other type of legal adviser before doing so. If a person abuses the ability to file a motion to vacate by doing so without proper grounds, he may make his consequences more severe. Furthermore, the process can be very complicated for an individual who has no knowledge of the procedure.

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The grounds for which such a motion can be granted vary from one jurisdiction to another. It is important to know what these are and to use them to argue for withdrawal. It is also important to make sure the motion to vacate is complete. Generally, several documents are required. This, however, can also vary depending upon the jurisdiction.

Examples of documents that are commonly needed include an order to show cause, which allows a person to obtain a court date to present his argument for vacating the judgment. At least one declaration is likely to be required. A declaration outlines the argument for withdrawal. There can be numerous declarations in one motion because the person initiating the motion to vacate will prepare one and he can have other parties who support his argument prepare one.

He is also likely to need a motion for order to show cause, which states the order or judgment that he would like to have vacated and gives a brief reason why. The full argument for withdrawal is not placed on this form as it is on the declaration. However, the declarations that are submitted will usually be listed on this form. Furthermore, a copy of the court order or judgment that a person is arguing to have withdrawn almost always needs to be included.

When a person files a motion to vacate, the opposing party must be notified. Notification of these individuals is known as service. They must be served by an adult who has no relation to the matter at hand. When the required parties are served, there is a form commonly called an affidavit of service that must be completed and presented.

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Discuss this Article

Markerrag
Post 2

@Logicfest -- one good way to have one of these granted is to demonstrate to the court how an appellate court would view the case. If it becomes obvious that the court's decision will likely be reversed on appeal, getting a judge to grant one of these motions becomes much easier.

Logicfest
Post 1

Anyone filing one of these had better have some compelling evidence or legal grounds to do so. Courts are not inclined to reverse there decisions absent an incredibly good reason to do so. In other words, how often does a judge admit that he is wrong? Not very often, and filing one of these motions often calls the judge's way he runs his or her courtroom into question.

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