Can a Judgment Be Set Aside?

Setting aside a judgment or attacking a judgment can be accomplished in many ways. You should consult with your attorney to assist you in determining what approach is best for you.

Setting aside a judgment based on mistake, inadvertence, surprise, or excusable neglect is entirely discretionary with the court.

Setting Aside a Judgment Based on Mistake, Inadvertence, Surprise or Excusable Neglect

You can set aside a judgment against you if it was obtained through your mistake, inadvertence, surprise, or excusable neglect. This approach is typically used to obtain relief from the entry of a default judgment. This remedy has also been applied to stipulated judgments, dismissal of an action, an order denying a motion for new trial, or an order granting a change of venue. This remedy is only available to a default judgment if you seek to set it aside based on your attorney's mistake, inadvertence, surprise, or neglect.

  • "Mistake" generally applies to a mistake of fact or law. A mistake of fact is when a person believes something proven to be erroneous. An example would be identifying your retirement account as an IRA when it is actually a pension plan. In contrast, a mistake of law occurs when a person misunderstands the legal consequences of known facts. An example would be if someone does not understand the tax implications when dividing property or gifting it to children. However, ignorance of the law or neglecting to research the law is not valid and could justify a denial of relief.

  • "Surprise" or "Inadvertence" results when someone is in an unexpectedly detrimental situation not of their own fault.

  • "Excusable Neglect" is when there is a legitimate excuse for the failure of a party or his/her lawyer to take required action on time. This includes, but is not limited to, illness, disability, mental confusion, inability to speak or understand English, and oversight by the lawyer's staff.

An asset's changed value after judgment that results in a windfall to the other party is not a basis for setting aside a judgment, nor is setting aside a judgment based on judicial error. Correcting a judicial error, i.e. error because of the court's rationale, may be done by filing a motion to vacate judgment, filing an appeal, or asking the court for some other equitable relief.

Setting aside a judgment based on mistake, inadvertence, surprise, or excusable neglect is entirely discretionary with the court. If your attorney was responsible for any of those issues, the court must vacate any resulting default or default judgment.

If you find that the judgment was obtained by you or your attorney's mistake, inadvertence, surprise, or neglect, you must file a motion for relief within six months of the judgment. If you have a stipulated judgment, or a judgment based on party agreements, the time starts to run when the stipulated judgment is entered and not when the stipulation is agreed to in open court.

Setting Aside a Judgment Based on Equitable Relief

Asking the court for equitable relief is another way to set aside a judgment. This approach is most applicable after the six month deadline passes or there are exceptional circumstances such as fraud, mistake, or duress. The issue at hand should be so egregious in this case that it prevents a party from participating in the dissolution proceeding or presenting his or her case as part of a fair trial.

To set aside a judgment based on fraud, a person would have to show that he or she was prevented from being a part of the proceeding through being kept in ignorance or some other deceptive manner, not because of their own ignorance. Some examples of fraud that have been upheld by the court include:

  • When one party persuades the other party not to obtain counsel and convinces the unrepresented party to enter into an inequitable agreement.

  • When one party deliberately conceals the existence of community property assets.

  • When one party fails to give notice to the other party of the dissolution action.

  • When one party fails to advise the court of the other party's inability to participate in the proceedings.

  • When one party obtains a judgment against the other without the other party's knowledge.

If the ground for setting aside a judgment is your own excusable neglect, that qualifies as a mistake. Some examples of mistake upheld by the court include:

  • Reliance on an attorney who became incapacitated.

  • Mistaken belief by one party that prevented proper notice of an action.

  • Disability of a moving party at the time judgment was entered.

  • An attorney's mistake in not filing an answer.

A judgment can be set aside through duress, which occurs when a party intentionally uses threats or pressure to induce action or inaction from the opposing party. These are determined on a case-by-case basis, although the court may consider factors such as age, sex, health, and mental characteristics of the aggrieved party. Some examples of duress upheld by the court include:

  • Threats of physical harm.

  • Threats of taking the children away or removing them to a foreign country.

  • Threats to have the other person "exterminated" and/or killed.

There is no six month deadline to file an equitable proceeding to set aside a judgment under this approach. However, there is a requirement that the judgment must have been entered BEFORE January 1, 1993, and failing to bring an equitable action immediately after discovering fraud could justify a denial of relief. Therefore, it's extremely important that you don't delay filing a claim.

If your judgment was entered on or AFTER January 1, 1993, you may still be able to set aside the judgment if you can show the grounds for doing so materially affected the original outcome, and you would materially benefit from the relief. The grounds for setting aside the judgment are similar to those stated above, with a few exceptions:

  • Fraud. Actions based on fraud must be brought within one year after the aggrieved party discovered or should have discovered the fraud. Merely suspecting fraud does not qualify.

  • Mistake. Actions based on mistake must be brought within one year after the entry of judgment. Failure to disclose the existence or value of a community asset qualifies as mistake.

  • Duress. Actions based on duress must be brought within two years after entry of Judgment.

In addition, the aggrieved spouse may also use the following grounds to set aside a Judgment entered on or AFTER January 1, 1993:

  • Perjury. If the other party lied on the preliminary or final declaration of disclosure and/or income and expense declaration, a judgment may be set aside based on perjury. Actions based on perjury must be brought within one year after the aggrieved party discovered or should have discovered the perjury.

  • Mental incapacity. If the aggrieved party lacked the mental capacity to enter into an agreement, a judgment may be set aside. Actions based on mental incapacity must be brought within two years after the judgment entry.

  • Non-compliance with disclosure requirements. If one party fails to comply with the disclosure requirements prejudices the party into a miscarriage of justice, a judgment may be set aside. This is provided it is brought one year after the party discovered or should have discovered the failure to comply.

Setting Aside a Judgment Based on an Omitted Asset

A judgment may be set aside if an asset is omitted through mistake or inadvertence. This is not necessary if the judgment's only requirement is equal division. The court still has jurisdiction over an omitted asset even after a judgment has been entered. In the case of omitted real property, you and your spouse will continue to own the property as tenants in common. Setting aside the entire judgment only arises when the omitted asset is not readily divisible, a redistribution of the community estate is required to achieve an equal division, or if support must be reevaluated in light of the omitted asset.

Setting Aside a Judgment for Intentionally Failing to Disclose an Asset

An intentional omission of an asset is far different than any scenario listed above. Spouses are subject to a good-faith standard that imposes a duty of the highest good faith and fair dealing for each spouse. Husbands and wives owe a "fiduciary duty" to their spouses during marriage, beyond separation, and even beyond the marriage dissolution if the property has not been divided.

As part of that fiduciary duty, you are required to be truthful about all assets and transactions that could affect the community estate, whether or not you believe the asset is community or separate property. Each spouse is required to disclose all assets and provide access to records regarding transactions concerning community property.

Setting Aside a Judgment Based on a Breach of Fiduciary Duty

If you discover an asset was intentionally concealed after a judgment has been entered, you may have grounds to set it aside based on fraud. You can also file a separate tort action against your spouse or file a breach of fiduciary claim, provided it is filed within three years of the date you learned of the fraud. The court may remedy the breach in a variety of ways, including awarding 50% to 100% of the asset's value to the injured spouse, and determining the rights of ownership or ordering changes in the property title (with some exceptions).

 

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