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What is a judgment "set-aside?"

A "motion to set-aside" is a post judgment procedure that allows either party in a finalized divorce proceeding to ask the court to set aside the judgment. If the motion to set-aside is granted, the court will generally hold a new trial on the issues that have been "set aside" by the court, typically (if the entire judgment is set aside) that means all of the unresolved issues in the case. The motion to set-aside must be made within a reasonable time, not to exceed one or two years after the original judgment or order is issued depending on the basis of the claim.

Section 2122 of the California Family Code sets forth six reasons that may be used to support a motion to set-aside, along with the time limitations within which to file the request with the court:

1) Actual fraud, if filed within one year;

2) Perjury, if filed within one year;

3) Duress, if filed within two years;

4) Mental Incapacity, if filed within two years;

5) Mistake, if filed within one year; and

6) Failure to comply with the disclosure requirements, if filed within one year.

It is important to note that the court will generally not grant a motion to set-aside unless the one of the criteria set forth above it met. If it is later discovered that a division of assets was inequitable or the amount of child or spousal support is inadequate, absent any finding that one of the six conditions is met, the court will not grant a motion to set-aside. In cases where the judgment or order is merely found to be inadequate or inequitable, there are other procedures that are more appropriate. For example, if financial circumstances change that makes the amount of child or spousal support inadequate, either party may be able to request the court to modify the order. This is not guaranteed; it is merely the opportunity to make the request.

This is a tricky area of the law and is generally hyper-technical, meaning that the time limitations are pretty much "set in stone" (generally not much in the law is "set is stone," but this area of the law is one of the areas where it is more limiting than other areas. The law disfavors setting aside judgments because the court likes to see these cases closed and brought to finality, so they are more often than not difficult to win if you are the party seeking to have the set aside granted.

If you are considering divorce, are going through divorce, or have questions about the judgment or order entered as a result of a finalized divorce, you should seek out capable and experienced family law counsel to guide you through this process.

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Calabasas Office
23501 Park Sorrento
Suite 103
Calabasas, CA 91302

Toll Free: 1-800-655-4766
Phone: 818-224-7900

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Toll Free: 1-800-655-4766
Phone: 310-859-7122

William A. Feinberg 1928 - 2001

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