Set-Aside of Dissolution Judgments - Naimish & Lewis, APC

Set-Aside of Dissolution Judgments: Can I get out of a Judgment in my case?

Posted February 24, 2023

The end of a divorce case, also known as dissolution of marriage in California, is when a final judgment has been entered and can no longer be altered in some way. Much conflict occurs in the time period between the entry of a final judgment and the time it is truly “final.”

What is wrong with the Judgment?

We often see individuals come to our office stating that they or their spouse do not agree with the outcome of their case, even if they reached a Judgment by entering into an agreement in lieu of going to trial. New information may have been uncovered, they may have disagreed with a court’s ruling, they may regret what they have agreed to, they may believe they received bad legal advice, and/or various other explanations as to why they believe the outcome of their case is improper.

Depending on the claims and the circumstances, one possible remedy the law provides is known as the “set-aside.”

Under what circumstances might a set-aside be attempted?

*As a brief disclaimer:

The purpose of this article is to introduce the concept of the set-aside and the possibilities for the set-aside’s application. This area of law is extremely technical and many of the terms used have legal meanings and significance beyond use in common language. Seeking the advice of an attorney to further explore the possibility of a set-aside is prudent and necessary before bringing a claim to court. This article provides general ideas and provides no guarantees these set-aside strategies are applicable to your case—frivolously bringing requests without proper advice may subject a party to sanctions and attorney’s fees orders.

Code of Civil Procedure Section 473(b): Discretionary Relief

The Court has the ability to set aside a judgment taken against a spouse through that spouse’s mistake, inadvertence, surprise, or excusable neglect. Each of these theories is technical and specific and require a deeper understanding than this article provides.

Code of Civil Procedure Section 473(b): Mandatory Relief

Under the same section of law, a Court is required to set-aside a clerk-entered default that will result in entry of a default judgment or a resulting default judgment or dismissal taken against a spouse from their attorney’s “mistake, inadvertence, surprise, or neglect.” At a minimum, however, the request must include a sworn affidavit from the moving spouse’s attorney.

*There is a strict time limit for which to file a request for a set-aside of a Judgment under CCP Section 473(b), and there are technical nuances to that defined time limit. If a spouse wishes to seek a set-aside, they must not hesitate to take action. Seeking counsel as soon as possible after discovering what may be an issue with the Judgment is the proper course of action to protect oneself, otherwise, they may risk denial of their request to set-aside under Section 473(b).

What if the time to file a set aside under Section 473(b) expires?

Family Code Section 2121: Discretionary Relief

In dissolution, nullity, or legal separation proceedings, after the time limit for CCP § 473(b) relief expires, the court still has the ability to set-aside a judgment taken against a spouse, in whole or in part, related to support or division of property, on the grounds of actual fraud, perjury, duress, mental incapacity, mistake related to stipulated or uncontested judgments, and/or failure to comply with disclosure requirements. To repeat, each of these grounds are technical and specific and require a deeper understanding than this article provides. In addition, each of these grounds has its own time period that must be complied with, otherwise, the remedy will be lost.

Family Code Section 2107: Mandatory Relief

In a prior article we discussed the possible consequences for failing to properly comply with the Family Code’s disclosure requirements. One such consequence is a set-aside of a Judgment, as indicated above. Family Code Section 2107 doubles down and states that noncompliance with the requires for the Preliminary Declaration of Disclosure, or Final Declaration of Disclosure, “does not constitute harmless error.” If noncompliance shows some prejudice as a result of the nondisclosure, the Court must set-aside the Judgment, in whole or in part.

Family Code Section 3690: Discretionary Relief

Similar to Family Code Section 2121, after the CCP § 473(b) time limit expires, the court has the ability to set-aside a support order taken against a spouse, in whole or in part, on the grounds of actual fraud, perjury, and/or lack of notice. To be redundant, each of these theories is technical and specific and require a deeper understanding than this article provides. Furthermore, these grounds for relief must have materially affected the original order, and that the requesting spouse must materially benefit from a set-aside order. As with Section 2121, each of these grounds has its own time period that must be complied with, otherwise, the remedy will be lost.

Time limits, time limits, time limits…

If any one point can be taken away from this article, you must have a heightened awareness and concern regarding time if you have a dispute with a Judgment. Delay is a factor the Court can consider for some of the set-aside claims described above, even if a claim is brought before the ultimate deadline. Seek counsel immediately to determine if any of the above theories apply to your case.

It is important to know your rights, responsibilities, and options regarding the dissolution or legal separation process, and relief from Judgments as a result of that process. Our family law team at Naimish & Lewis can advise you on this and other family law matters. To schedule an initial consultation with an attorney at our firm, please contact us.

Robert J. Allison, Esq.

Mr. Allison is a resolution-oriented associate attorney in our Family Law Practice. Even-keeled and fact focused, he is able to assist our clients understand their rights and obligations through the stress and smoke and mirrors presented in their divorce, custody, and domestic violence matters. During the initial consultation, and again once facts and evidence have been collected, Mr. Allison provides various strategies to help clients present their cases, considering cost, time, and client needs. He prides himself in not making false promises to his clients and is unafraid to speak the raw and sometimes harsh reality of how a Court will decide a matter given a specific set of facts and circumstances, both to his clients and to opposing parties. Many potential clients share that they are unhappy with their previous attorneys because they felt a lack of communication, an uncertainty about the family law process and timeline, and they do not understand the strategy in their case or the invoices they receive. While the legal process is complex, Mr. Allison attempts to reduce the confusion through a reasonable case management process involving client participation, because a family law case is often the most difficult period of time in a client’s life.