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HOW TO CORRECT CLERICAL ERRORS
WHAT CAN I DO WHEN THE JUDGE GETS IT WRONG?
When you disagree with a Court Order, you have five basic options: (1) request correction of a clerical error; (2) file a motion for reconsideration; (3) file an appeal; (4) file a motion to vacate; and (5) file a motion to modify based on “changed circumstances,” which applies only to custody and support orders.
CLERICAL ERRORS. Correction of a clerical error can occur at any time and does not necessarily require a motion. Clerical errors include, for example, simple mathematical mistakes. But be warned, there is often significant disagreement over whether an error was merely clerical or was actually a substantive mistake.
This section of the Divorce Guide discusses correction of clerical errors.
RECONSIDERATION. A motion for reconsideration must generally be filed within twenty days of receiving a final Court Order. However, when seeking reconsideration of a non-final Court Order (i.e., “interlocutory” or “pendente lite”), no time limit applies and the burden is much lower. You can read more about motions for reconsideration here: [Guide to Reconsideration.]
APPEAL. An appeal of a final Court Order must generally be filed within 45 days of the date on which the Order was entered. However, when appealing a non-final Court Order (i.e., “interlocutory” or “pendente lite”), you must generally file that appeal within 20 days of the date on which you received the Order. There are exceptions and circumstances in which these deadlines can be extended. You can read more about appeals here: [Guide to Appeals.]
MOTION TO VACATE. Even after those deadlines expire, you have another option: file a motion to vacate the Order. There are several reasons listed in the Rules of Court that might warrant vacating a Court Order. Depending on the reason for which you are asking to vacate the Court Order, you are required to file your motion within either one year of the Order’s entry, within a “reasonable time,” or at any time. You can read more about motions to vacate here: [Guide to Motions to Vacate.]
CUSTODY/SUPPORT ORDERS. The fourth option applies only to custody and support orders. Those kinds of orders are modifiable at any time on a showing of “changed circumstances.” You can learn more about how to modify custody and support orders here: [Guide to Modifying Custody/Support Orders.] Additionally, you can read more about the law governing custody here: [Guide to Custody.] You can read more about the law governing child support here: [Guide to Child Support.] You can read more about the law governing alimony (otherwise known as spousal support) here: [Guide to Alimony.]
All the requests above, except appeals and correction of clerical errors, are made by filing a motion. You can find out how to file a motion here: [Guide to Filing Motions.]
NO TIME LIMIT
“Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission may at any time be corrected by the court on its own initiative or on the motion of any party, and on such notice and terms as the court directs, notwithstanding the pendency of an appeal.” [R. 1:13-1.]
APPEAL HAS NO EFFECT
Allowing a trial court to correct an error may render an appeal moot and is “a more efficient and less time-consuming procedure” than requiring a litigant to apply for a temporary remand to the trial court. [McNair. v. McNair, 332 N.J. Super. 195, 199 (App. Div. 2000).]
WHAT IS A CLERICAL ERROR?
Nonetheless, be warned. It is at times unclear whether an error can be characterized as merely clerical rather than a substantive error requiring a motion for reconsideration and invoking the time constraints at times applicable to such motions.
NO MOTION IS NECESSARY
Andrew M. Shaw, Esq. is the author of this New Jersey Divorce Guide and the founder of Shaw Divorce & Family Law LLC in Somerville, New Jersey.
ASSOCIATIONS & MEMBERSHIPS:
- American Bar Association - Family Law Section
- New Jersey State Bar Association – Family Law Section
- New Jersey State Bar Association – Appellate Practice Special Committee
- Somerset County Family Law Practice Committee
- MENSA International