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Motion to Set-Aside

Throughout Del Mar and San Diego County, many people enter into agreements and obtain judgments that later turn out to be unsuitable to fit their needs. Once a final judgment is obtained, parties have few options to seek an alternate resolution. Depending on the circumstances, a party may either file a motion to set aside the judgment or for a post-judgment modification.

A post-judgment modification will only be successful if the requesting party can show a material change of circumstance. Family courts enforce a statewide policy that favors the finality of judgments. It is inappropriate to seek a modification of a judgment if a spouse is simply unhappy with the terms. Therefore, a judgment will only be disturbed under specific circumstances.

Under California law, a party has the ability to have an order or judgment set aside. Pursuant to California Code of Civil Procedure section 473, “the court may, upon any terms as may be just, relieve a party…from a judgment.” An application to set aside a judgment under CCP 473 must be made within a “reasonable time” and in no case may exceed six months. The California Family Code extends this civil statute of limitations. Under California Family Code section 2122, “the grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section.” The following is a list of grounds to base a claim for a motion to set aside on: (1) actual fraud, (2) perjury, (3) duress, (4) mental incapacity and (5) failure to comply with the disclosure requirements. The time limits to bring these actions to set aside a judgment vary from one to two years depending on the basis of the set aside motion.

With respect to a stipulated or uncontested judgment, a party may move to set it aside on the basis of mistake, either mutual or unilateral, whether the mistake is of law or fact.

Similar to a post-judgment modification, the court is unwilling to grant a motion to set aside unless the criteria set forth above is met. Additionally, a judgment may not be set aside because the court finds it inequitable when made, nor because subsequent events or circumstances have caused the division of assets or liabilities to become inequitable. The later inadequacy of support is likewise an improper ground upon which to base a motion to set aside. The court does have flexibility to set aside only those portions of a judgment that are materially affected by the circumstances leading the court to grant relief.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.