At the end of the divorce process, once the parties have settled into their new lives, it is not uncommon for one or both sides to have “buyer’s remorse” regarding the agreement they have entered into. In San Diego, the court requires parties to participate in a Mandatory Settlement Conference (“MSC”) prior to a trial on issues related to divorce. The MSC requirement was enacted to further California’s policy to promote settlement of family law issues. Through a divorce case, the court will put pressure on the parties to settle their case outside of the courtroom. Often the impact of the terms of the judgment is not exactly how the parties imagined. In addition, one party may discover new information after entry of judgment that would have changed the outcome of the parties’ negotiation.
If you have entered into a divorce judgment and would like to pursue a set-aside motion you should consult with an experienced family law attorney immediately. Pursuant to the governing code sections and case law, time is of the essence for a family law litigant to file a motion to set-aside. A motion to set-aside filed within the first six months following entry of judgment is governed by Code of Civil Procedure section 473 which states, “the court may, upon any terms as may be just, relieve a party…from a judgment.” CCP 473 provides the court broad discretion to set aside judgments “upon any terms as may be just”. After the first six months have passed, it is much more difficult to obtain a favorable outcome in a set-aside motion.
California Family Code
California Family Code section 2122 extends the six-month statute of limitations for a set-aside motion wherein the moving party alleges at least one of the following: (1) actual fraud, (2) perjury, (3) duress, (4) mental incapacity and (5) failure to comply with the disclosure requirements. Depending on the grounds for the set-aside motion, the statutes of limitations range from one year to two years. In a motion to set-aside, the burden is on the moving party to prove at least one of the above requirements is met.
Throughout California, motions to set-aside are generally not favored. San Diego family court judges are under a duty to preserve the finality of divorce judgments. Finality is important in family law matters because it means that both parties can move on without the threat of ongoing litigation. In order to promote judgment finality, a motion to set-aside will not be granted just because the moving party argues it is “unfair” or has changed his or her mind. It is improper for the court to set aside a judgment based on inequitable division of property or even if the court finds the level of support is inadequate. Both parties received the benefit of their bargain in every negotiated judgment and family court judges do not often unwind those agreements.
If you would like to discuss a motion to set-aside or to learn more about the California divorce process, child support, spousal support, child custody and visitation or property division, schedule a consultation with an experienced family law attorney at Cage & Miles, LLP. Our skilled attorneys can provide you with the knowledge you need to make informed decisions and protect your rights.
