Motion To Set Aside Judgment

One of the most common types of post-judgment motions is a motion to set aside your family law judgment. California Family Code Section 2122 states that a motion to set aside a judgment can be granted in any of the following circumstances:

Once the time has passed for filing a post-judgment motion or appeal, the court’s judgment becomes final.

1) If there was actual fraud by one of the parties, where the party who was defrauded was kept in ignorance, or was fraudulently prevented from participating in the proceedings. You have one year from the time that you discovered, or should have discovered the fraud, to file for a motion to set aside

2) If the other party committed perjury, or lied under oath, with regards to the nature and extent of their income or the community and separate property issues of the marriage; You have one year after the time that you discovered, or should have discovered the perjury, to file for a motion to set aside

3) If you signed the judgment or participated in the proceedings under duress from the other party. You have two years after the entry of judgment to file for a motion to set aside based upon duress

4) If you believe that you were not mentally capable of understanding the consequences of signing a judgment or understanding the nature of the proceedings. You have two years after the date of entry of the judgment to file a motion to set aside based on mental incapacity

5) If a mistake was made, either by one party, or both parties, when drafting or entering into a stipulated judgment. You have one year from the date the judgment was entered to file a motion to set aside based on mistake

6) If a party failed to comply with the disclosures necessary regarding the full nature and extent of community and separate property. You have one year from the date that you discovered, or should have discovered the failure to comply to file a motion to set aside based on failure to comply with disclosures

The many different situations and time limits to file a motion to set aside a judgment make the process extremely complex. A motion to set aside a judgment should not be attempted without the help of an experienced family law attorney in Orange County, as failure to set aside could result in permanent consequences.

Motion To Set Aside Default Judgment

A default judgment is entered when the responding party to the court action breaks down to respond to the petition for divorce or a paternity action. If you have failed to respond, the court will normally enter a default judgment allowing the requests of the party who filed the petition.

If a default judgment has been entered against you in your family law case? Then you may be able to have the default judgment set aside if you act quickly as possible. Under California Code of Civil Procedure 473(b), you can request to have your default judgment to be set aside within six (6) months of the appearance of judgment if the judgment was entered against you because of:

1) An Error or Mistake. There are two types of mistake that qualify for a motion to set aside:

•  An error or mistake of fact is when one of the parties understands the facts to be other than as they are. This might happen when one party identifies their retirement account as an IRA, when it is actually a pension plan. This would have to be your grounds for not responding to the petition.
• A mistake of law happens when a party misunderstands the legal consequences of known facts. This might happen when a party does not comprehend the consequences of not responding to a petition. Nevertheless, it is important to note that ignorance of the law is not an excuse to set aside a judgment; so it can be difficult to prove a mistake of law.

2) Excusable neglect on your part. To be excusable, the neglect must have been the act or omission of a reasonably prudent person under the circumstances. Here are some examples of excusable neglect:

• Under California Code of Civil Procedure 473(b), you can request to have your default judgment set aside within six (6) months of the entry of judgment.
• Illness that disables one of the parties from appearing in court.

• Lack of success to respond because you relied on your attorney to do so.

• Lack of success to appear at trial because one of the parties relied on misinformation provided by a court officer.

3) Inadvertence. Excusable neglect and inadvertence are virtually synonymous. Inadvertence occurs when one of the parties is in an unexpectedly detrimental situation that is not their own fault.

4) This happens when a person is placed in an injurious legal situation, through no fault or negligence of his or her own, that normal prudence would not have guarded against.

Motion For Reconsideration

If you filed any request with the court, and that request was turned down, you may be able to file a motion for review to have the court re-evaluate your appeal. If you have confidence that your request to the court was denied in error or mistake, or new facts have presented themselves shortly after the judge made his ruling, you may be able to request another hearing to have your concerns heard in the appropriate manner.

For that reason, under California Code of Civil Procedure 1008, when a judge declines your request in whole or in part, you have ten (10) days from the date that the request was denied to request the court to reconsider its decision. You may only make this appeal if you use new or different facts, or raise a different legal argument with regards to your appeal.

Keep in mind that if you file a frivolous motion for review that is not based on new or different facts or law, you could be grounded to a fine and have to pay for the attorney’s fees of the other party. Because motions for reconsideration are time sensitive and legally complex, you should consult and hire an experienced modifications attorney before making any attempt to file for a motion for reconsideration.

WHAT INFORMATION SHOULD I GATHER BEFORE MEETING WITH A FAMILY ATTORNEY?

While every family case is different, gathering all personal information for yourself or any minors involved in the case prior to meeting with a family attorney can help ensure the initial consultation is smooth. See the items you should bring below:

• Birth certificates 
• Bank statements 
• Employment information 
• Mortgage information 
• Tax returns 
• Any other information requested by our attorneys

In need of an experienced family law attorney? Book an appointment by calling (310) 894-6440.

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The faster you speak to a family attorney the better. Waiting too long to file family law can complicate your case. Make it easy on yourself. Call us to talk with an experienced lawyer right away. Your call is confidential, and you’re FREE CONSULTATION with one of our family attorneys at (310) 894-6440.