Set Aside of Orders and Judgments in Divorce
The issue of setting aside an order or judgment in family law, particularly in divorce cases, arises often for our clients. Many of Wilkinson & Finkbeiner, LLP’s potential clients contact our law firm to review an order or family law judgment that was previously entered in their case to see if they can “get out” of the terms. The law as it relates to setting aside a divorce or other family law judgment is extremely complex and requires the assistance of a qualified attorney to navigate through the applicable code sections of the Code of Civil Procedure and Family Code. The first rule of thumb for setting aside orders and judgments is don’t get into a mess in first place – call us before you agree to any terms of a judgment! We have a much better chance to avoid any pitfalls before a Marital Settlement Agreement is signed. However, in the event that you are in a position where you need to look at whether it is possible to set aside an order or family law judgment, this page is for you.
How can I file to Set Aside a Judgment or Order from my Divorce Case?
If you feel as though something is legally wrong with your judgment or order stemming from a divorce or other family law case, it is possible that you may have the legal grounds to seek to set aside those orders. If you are unsure whether there are legal grounds for a set aside, you should contact an attorney right away to discuss your options. If there are permissible legal grounds to seek the set aside, there may be time limits that must be followed.
Whatever you do, act fast!
If there are legal grounds to possibly set aside a divorce or dissolution of marriage judgment, the process starts with the filing of a Request for Order, which is also called an “RFO”. The RFO is comprised of some forms and other “pleadings” that you file in the same court as the one that entered your judgment in the first place.
The RFO packet includes form FL-300 and associated documents. These forms require the moving party to write out what relief they are seeking and why. The moving party can file a separate “declaration” along with their RFO forms that sets forth that person’s testimony as to why a judgment should be set aside. The declaration is written on pleading paper and is usually typewritten, and must be signed and dated “under penalty of perjury under the laws of the State of California”.
We also recommend that you prepare and file a “Points and Authorities” to support your motion to set aside an order or judgment in a Family Law case. A “points and authorities” is the law that applies to a particular request. Here, the law that applies is CCP 473 or Family Code 2120 (and those set of statutes).
How do I respond to a Request to Set Aside my Divorce Judgment?
If your ex-spouse files to set aside your divorce or dissolution of marriage judgment, you should act quickly to contemplate your next steps. You should contact an attorney right away.
Your response to the motion to set aside the judgment or order should include the requisite forms (FL-320) and your own “declaration” under penalty of perjury. Thoroughly research the law that applies to setting aside judgments because you might be able to have the court summarily dismiss the request if the RFO motion to set aside is not brought within the requisite time period. You should also file your “points and authorities” setting forth the applicable law and how it applies to your case.
You must also attend the hearing that has been scheduled. If you don’t attend the hearing, the court will likely grant whatever relief is sought by your ex-wife or ex-husband.
Code of Civil Procedure 473
California Code of Civil Procedure 473 (particularly subsection (b)) applies to the setting aside of certain superior court orders or judgments. The key issue as to whether this section applies has to do with the timing of when the order or judgment was entered.
Section 473(b) begins, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” This is quite a broad allowance for relief. The catch, however, is that the motion must be filed within 6 months of the date of the order or judgment. This gives a pretty short amount of time to file this motion.
Usually motions under CCP 473 occur when a party is “defaulted” in the case – meaning that the other party served them with notice of the case but they failed to respond and thereafter the court made orders or judgments against them. If timely filed, these motions are usually successful because the theory is that the court wants everyone to have a fair chance to have their “day in court.” Motions under CCP Section 473 must be accompanied by the pleadings that would normally be responsive to the action. For example, if a wife files a divorce case against the husband and husband never responds to the case and is defaulted, if the husband files a motion for relief under this section he must also provide his Response to the case, so that if the court does set the default aside then the husband’s motion is there and ready for filing.
Family Code 2120, et seq.
If the time limits have passed for possible relief under CCP 473, family law litigants trying to obtain relief from a divorce, annulment or other judgment may still have a chance to get that relief by filing a motion under California Family Code section 2120 (and the subsequent relevant sections.)
Fam. Code 2121 states in part, “In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter.”
The caveat to the applicability of this set of code sections is that relief from the judgment can only be obtained if doing so would materially alter the outcome. (See Fam. Code 2121(b)) This means that if a divorce judgment is consistent with what the law requires (for example, an equal division of community property is included in the original judgment), it may be unlikely that the court will set aside the judgment. Conversely, if the original judgment is not particularly what the court would have ordered (for example, zero custody rights for one parent), it is more likely that the order or judgment will be set aside. Notably, Family Code Section 2120, et seq. does not apply to inequitable judgments. This means that just because a judgment is “unfair” to one party, it does not mean the judgment can be set aside on those grounds.
The grounds for relief are found under Family Code Section 2122 and applicable time limits for filing a motion for set aside under these areas are as follows:
- Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding.
- Time limit: An action or motion based on fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud.
- Perjury. An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement is possible under this section.
- Time limit: A motion for perjury shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury.
- Duress. An action or motion based upon duress (which means pressuring someone to do something they normally wouldn’t do by using some sort of coercion or similar tactic) is possible.
- Time limit: A motion for a set aside based on duress shall be brought within two years after the date of entry of judgment.
- Mental incapacity.
- Time limit: An action or motion based on mental incapacity shall be brought within two years after the date of entry of judgment.
- Stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact may be obtained under this section.
- Time limit: An action or motion based on mistake shall be brought within one year after the date of entry of judgment.
- Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100).
- Time limit: An action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply.
If you have an issue in your divorce case where you are unsure whether you should sign an uncontested agreement, contact our office today before you sign anything! We can discuss your options with you. If you have an issue where your divorce case is completed, but you think you may want to try and set aside the judgment, contact our office today. We have litigated this issue many times in the past and can assist you in moving forward. Call or email us today.