<img height="1" width="1" src="https://www.facebook.com/tr?id=467191071302414&amp;ev=PageView &amp;noscript=1">

Child Support Payment Calculator

Get Your Estimate

Is Divorce The Right Option For You?

Take The Quiz

Protect Your Assets and Net Worth During Divorce

Download The Guide

Get a 30–Minute, Free Consultation

You will walk away with an idea of what choices you can make and what each different path would look like – whether or not you wish to pursue any action now.

Contact Us

Motion to Set Aside Judgment

In family law cases, it is common for spouses to come to an agreement about the issues in their divorce case, such as child custody, spousal support, and property division. Other times, when spouses cannot agree, the court must decide how their issues should be determined. In either situation, the court eventually enters a judgment.

What happens if, after the family law court enters your divorce judgment, you wish to cancel or void the judgment? Under limited circumstances, the court may allow you to cancel or “set aside” your judgment.


Set Asides under the California Code of Civil Procedure

Pursuant to California Code of Civil Procedure section 273(b): “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.” What does this mean?

  1. Mistakes

Mistake of Fact

If you reasonably misunderstood one or more key facts in your family law case, you may be able to set aside your judgment.

Mistake of Law

if you reasonably misunderstood the legal consequences of certain facts, you may be able to set aside your judgment.

  1. Inadvertence/Surprise

If you unexpectedly suffered harm from your judgment and were not harmed because of your own negligence, you may be able to set aside your judgment based on inadvertence/surprise.

  1. Excusable Neglect

If you or your lawyer failed to meet a court deadline because of a language translation issue, physical or mental illness, or a disability, you may be able to set aside your judgment on this basis.

Importantly, you must bring a motion to set aside a judgment under Section 473(b) within a reasonable time, in no case later than six months after the judgment, dismissal, order, or proceeding was taken.

Further, if the court finds that you did not have a valid legal reason for requesting the set aside, you may have to pay the attorney fees that your ex-spouse incurred to defend the judgment.


Set Asides under the California Family Code

Pursuant to the Family Code, the court has authority even after six months to grant a motion to set aside in limited circumstances “if facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.” (Fam. Code, § 2121.)

Although there is a public policy in California of assuring finality of judgments, that policy “must be balanced against the public interest in ensuring proper division of marital property, in ensuring sufficient support awards, and in deterring misconduct.” (Fam. Code, § 2120.)

Family Code section 2122 allows the court to set aside a judgment for the following reasons:

  1. Actual Fraud

If your spouse hid key information from you, such as a major community asset, or otherwise prevented you from meaningfully participating in the divorce process, you may be able to set aside your judgment based on actual fraud. Note that the deadline to file a set aside based on actual fraud is one year from the date you learned (or should have learned) about the fraud.

  1. Perjury

If your spouse lied on his or her disclosures (Schedule of Assets and Debts and/or Income and Expense Declaration), you may be able to obtain a set aside based on perjury. The deadline to file a set aside motion based on perjury is one year from the date you learned (or should have learned) about the perjury.

  1. Duress

If your ex forced you to sign the divorce judgment against your will, you may be able to set it aside based on duress. For example, if your ex-spouse pressured you to sign it by making threats to take the children away and to reveal embarrassing and harmful information about you to your employer, those actions could qualify as duress.

Acts of psychological coercion, threats, and financial control all go toward a finding of duress. Two years from entry of your divorce judgment is the deadline to bring a set aside motion based on duress.

  1. Mental Incapacity

If you can show that you lacked the mental capacity to enter into your divorce judgment, you have two years from the entry of judgment to bring a set aside on the basis of mental incapacity.

  1. Mistake of Law or Fact

As outlined above, if you made a reasonable mistake of fact or law, you may be able to set aside the judgment. Note that the Family Code gives you a deadline of one year from the entry of judgment while the Code of Civil Procedure only gives you six months.

  1. Failure to Comply with Disclosure Requirements

If your spouse failed to provide information and/or documents required by the Family Law disclosures, you can ask the court for a set aside. The deadline to file such a motion is one year after the date when you discovered (or should have discovered) the failure to comply with disclosure requirements.

Man using a laptop while having cup of coffee in cafe

Keep in mind that the family courts will not set aside a judgment “simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate.” (Fam. Code, § 2123.)

For example, in Marriage of Heggie (2002) 99 Cal. App. 4th 28, Ms. Heggie tried to set aside her divorce judgment that provided Mr. Heggie was to transfer funds from his IRA to her IRA.

After the judgment was filed, there was a delay of less than one month in forwarding the IRA rollover instructions. During this delay, Mr. Heggie’s stocks increased in value by less than $300.

Ms. Heggie claimed that the delay and subsequent rise in stock value resulted in an imbalance division of the community property. However, the court found that an imbalanced community property division by itself was not sufficient to support a set aside.

The court considered that Mr. Heggie did not have an obligation to update Ms. Heggie about the stock values. Further, there was no evidence that Mr. Heggie delayed the transfer in bad faith and the loss caused by the delay was minimal.

As you can see, it is not simple or easy to set aside a judgment. Whether you are able to do so depends very much on the specific facts of your case.

The family law attorneys at Cage & Miles, LLP can evaluate your chances of being able to set aside your judgment. Call today for a free consultation with one of our family law experts.


New call-to-action