Motions to Set Aside a Divorce or Family Law Judgment

Motions to Set Aside a Divorce or Family Law Judgment

Sometimes, it's not over when it's supposed to be over. After a divorce judgment is entered with the court, there is a period of time where that judgment can be set aside or vacated, ie, undone. When that happens, the spouses essentially start over with their divorce.

However, there are specific grounds for setting aside a divorce judgment. It just can't be done because one of the spouses has changed his or her mind. By law, judgments are suppose to be a judge's final decision, so there must be special circumstances for asking a judge to set aside a judgment and redo the divorce.

Code of Civil Procedure Section 473 states that a judgment can be set aside for mistake, surprise, inadvertence, or excusable neglect. The deadline for filing a motion to set aside under Section 473 is 6 months from the date the judgment was entered with the Court. What asking for a set aside under Section 473 means is that you are essentially accepting responsibility for a reasonable mistake on your part, such as, you thought you had to file your Response to your spouse's petition for dissolution on Friday, but it was really due Wednesday, and you simply miscalculated the deadline. The judges are lenient up to a point when granting a motion to set aside under Section 473. However, ignoring things indefinitely will not constitute 'excusable neglect.'

After the 6 month period for filing a motion to set aside under Section 473, a spouse can still file a motion under Family Code Section 2122. Unlike motions to set aside under Section 473, the family law judges aren't supposed to be as lenient. Family Code Section 2122 lists specific grounds for setting aside a family law judgment: 1) fraud; 2) perjury; 3) duress; 4) mental incapacity; 5) in the case of marital settlement agreements which became judgments, a mistake of law or fact; and 6) failure to comply with the disclosure requirements (each spouse must do at least one declaration of disclosure, and those disclosure should contain certain information). The deadline for filing a motion to set aside under Section 2122 varies, depending on the particular grounds that you cite. So, for example, filing a motion to set aside on the grounds of fraud must be done within 2 years that you discovered or should have discovered the fraud, while a motion to set aside on the grounds of perjury must be filed within 1 year after the date you discovered, or should have discovered the perjury.

When filing a motion to set aside under Section 2122, aside from being required to cite the specific grounds for setting aside the judgment, such as duress, you must also prove to the family law judge that the particular ground resulted in harm to you, i.e., you were prejudiced in some manner because of the ground you cited. So, for example, if your spouse is abusive, and locked you in a room and told you that you couldn't leave until you signed a marital settlement agreement in which you would be giving up spousal support to which you would have been entitled to otherwise, the judge can set aside the judgment and marital settlement agreement on the grounds of duress. However, if your spouse locks you in a room, and makes you waive any interest in his inheritance, the judgment and marital settlement agreement won't be set aside because his inheritance is his separate property anyway, and you never had an interest in it to begin with. There's no harm or prejudice to you, as to the judgment and marital settlement agreement. (You may have a case for kidnapping and/or false imprisonment though).

If you believe that your judgment or marital settlement agreement is unfair to you because of your ex-spouse's fraud, perjury, duress, or one of the other grounds stated, then please contact the Law Offices of Evan Samuelson to see what we can do for you to rectify the situation

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