Setting Aside Divorce Judgments in Los Angeles
What does it mean to “set aside” a divorce judgment? A “set aside” in simple terms means that a court vacates or voids a prior order, as if the order never existed. Before a court will “set aside” a judgment or order, there must be a clear statutory basis for the set aside, and facts that warrant the order vacated. This page describes in detail how set aside actions work in Los Angeles divorce and family court.
Set Aside of Divorce and Other Family Law Judgments and Orders
In some circumstances, the court may set aside (also called “vacating”) a judgment or other family court order if the facts and law allow such a set aside. To make this happen, a party will need to file a motion with the family court where their judgment was entered. This motion is called a “Request for Order” and when this document is filed a hearing date is set and at that hearing the court will consider whether a set aside is warranted and necessary.
Setting aside family court judgments and orders can be an extremely complex area of law and if you are contemplating filing for a set aside you should contact our office. We are experts in family law and we have handled many set aside actions. We understand all the rules and procedures involved and while this page provides a general outline of information related to setting aside judgments and orders, there are formalities that must be followed and our attorneys are also familiar with the L.A. family court judges that hear set aside motions.
Can a Marital Settlement Agreement be Set Aside Because it is Grossly Unfair?
No, unless there are grounds on another basis to set aside the judgment incorporating that MSA (“Marital Settlement Agreement”). For example, if grounds exist to vacate a judgment based on fraud and the MSA is grossly unfair to one party, because the fraud basis will probably allow for the set aside the MSA will be vacated. The simple fact that an agreement is unfair is not grounds to vacate or set aside the judgment- the Family Code specifically disallows the family court judge to set aside on the sole basis that an agreement is unfair to one party (see Family Code 2123).
What kinds of Judgments and Orders can be Set Aside?
There are numerous judgments and orders that the family courts in L.A. County can set aside. These include Marital Settlement Agreements incorporated into a divorce (dissolution of marriage) judgment, stipulated judgments, stipulations, and Civil Code of Procedure 664.6 agreements.
What are the Legal Grounds to Set Aside a Divorce Order?
We begin the answer to this question by stating that there are several legal ways to seek a set aside in family court. The first way is under Code of Civil Procedure 473, which allows for a party to file a set aside request within 6 months of the entry of the judgment by the court on the grounds of mistake, inadvertence, surprise, or neglect, or for attorney negligence. Next, if CCP 473 does not apply to the motion to set aside, the Family Code at section 2120 and the sections following may allow for the set aside. Family Code 2122 provides for the grounds that a family law divorce judgment may be set aside, which includes fraud, perjury, duress, mental incapacity, mistake, and failure to follow the rules of disclosure.
What is the Statute of Limitations for Setting Aside a Divorce Agreement?
The maximum time allowed is two years for any of the grounds described above, from the date the aggrieved person learned of the problem. For example, in the case of fraud, the statute of limitations begins when the person learns of the fraud. Most of the grounds for set aside must be pleaded within one year of the date of entry of judgment.
One additional method to set aside a judgment, and there is no statute of limitations, is when a respondent is not properly served with notice of the hearing and doesn’t have the opportunity to appear in the case. If service was improper, the case cannot go forward and any judgments are invalid and will be set aside.
What is the Procedure to Initiate and Conclude a Set Aside?
The procedure to set aside a Los Angeles divorce or other family court order begins with the filing of a Request for Order (RFO), which means a motion. This motion then needs to be “served” on the other side. It is not sufficient for the person seeking the order of set aside to drop the motion in the mail to the other side. Proper rules of service must be followed. Once the other party is properly served, they will likely file a response to the request. Then, the parties and their counsel will meet at court on the identified hearing date to have the hearing on the motion, and thereafter the judge will decide on the motion and an order will be created.
For more information about setting aside family law and divorce orders and judgments, contact our law firm today for a free, initial consultation. We are experts in the area of setting aside divorce judgments.