If you are unhappy with the final judgment in your case, you may be able to file a motion for a post-judgment modification of the existing orders. The family court’s final determination on issues of property division and distribution of the community estate cannot be modified except through a timely motion for a post-judgment modification or on appeal. Once the time has passed for filing a post-judgment motion or appeal, the court’s judgment becomes final. Thus, if you are seeking to file a post-judgment motion, it is imperative that you contact an experienced Orange County family law attorney today.
Motion to Set Aside Judgment
One of the most common types of post-judgment motions is a motion to set aside your family law judgment. California Family Code Section 2122 states that a motion to set aside a judgment can be granted in any of the following circumstances:
1) If there was actual fraud by one of the parties, where the party who was defrauded was kept in ignorance, or was fraudulently prevented from participating in the proceedings. You have one year from the time that you discovered, or should have discovered the fraud, to file for a motion to set aside
2) If the other party committed perjury, or lied under oath, with regards to the nature and extent of their income or the community and separate property issues of the marriage; You have one year after the time that you discovered, or should have discovered the perjury, to file for a motion to set aside
3) If you signed the judgment or participated in the proceedings under duress from the other party. You have two years after the entry of judgment to file for a motion to set aside based upon duress
4) If you believe that you were not mentally capable of understanding the consequences of signing a judgment or understanding the nature of the proceedings. You have two years after the date of entry of the judgment to file a motion to set aside based on mental incapacity
5) If a mistake was made, either by one party, or both parties, when drafting or entering into a stipulated judgment. You have one year from the date the judgment was entered to file a motion to set aside based on mistake
6) If a party failed to comply with the disclosures necessary regarding the full nature and extent of community and separate property. You have one year from the date that you discovered, or should have discovered the failure to comply to file a motion to set aside based on failure to comply with disclosures
The many different situations and time limits to file a motion to set aside a judgment make the process extremely complex. A motion to set aside a judgment should not be attempted without the help of an experienced family law attorney in Orange County, as failure to set aside could result in permanent consequences.
Motion to Set Aside Default Judgment
A default judgment is entered when the responding party to the court action fails to respond to the petition for divorce or a paternity action. If you failed to respond, the court will generally enter a default judgment granting the requests of the party who filed the petition.
Has a default judgment been entered against you in your family law case? If so, you may be able to have the default judgment set aside if you act quickly. Under California Code of Civil Procedure 473(b), you can request to have your default judgment set aside within six months of the entry of judgment if the judgment was entered against you because of:
1) A mistake. There are two types of mistake that qualify for a motion to set aside:
- A mistake of fact is when one of the parties understands the facts to be other than as they are. This might occur when one party identifies their retirement account as an IRA, when it is actually a pension plan. This would have to be your basis for not responding to the petition.
- A mistake of law occurs when a party misunderstands the legal consequences of known facts. This might occur when a party does not understand the consequences of not responding to a petition. However, it is important to note that ignorance of the law is not an excuse to set aside a judgment; so it can be difficult to prove a mistake of law.
2) Excusable neglect on your part. To be excusable, the neglect must have been the act or omission of a reasonable prudent person under the circumstances. Some examples of excusable neglect are:
- Illness that disables one of the parties from appearing in court
- Failure to respond because you relied on your attorney to do so
- Failure to appear at trial because one of the parties relied on misinformation provided by a court officer
3) Inadvertence. Excusable neglect and inadvertence are virtually synonymous. Inadvertence occurs when one of the parties is in an unexpectedly detrimental situation that is not their own fault.
4) This occurs when a person is placed in an injurious legal situation, through no fault or negligence of his or her own, that ordinary prudence would not have guarded against.
Motion for Reconsideration
If you filed any request with the court, and that request was denied, you may be able to file a motion for reconsideration to have the court re-evaluate your request. If you believe that your request to the court was denied in error, or new facts have presented themselves shortly after the judge made his ruling, you may be able to request another hearing to have your issues heard in the appropriate manner.
Under California Code of Civil Procedure 1008, when a judge refuses your request in whole or in part, you have ten (10) days from the date that the request was denied to request the court to reconsider its decision. You may only make this request if you use new or different facts, or raise a different legal argument with regards to your request.
Keep in mind that if you file a frivolous motion for reconsideration that is not based on new or different facts or law, you could be subject to a fine and have to pay for the attorney’s fees of the other party. Because motions for reconsideration are time sensitive and legally complex, you should consult and hire an experienced Orange County modifications attorney before making any attempt to file for a motion for reconsideration.
Post-Judgment Modification Attorney
If you or someone you love is unhappy with the final judgment that has been entered in their case, an experienced Orange County modifications attorney may be able to change or remove the orders that have been made. The skilled family law attorneys at Wallin & Klarich have over 30 years of experience helping clients make post-judgment modifications to their court orders. You can rely on our promise that we will fight hard to achieve the best possible outcome in your case, by obtaining the post-judgment modification that you are legally entitled.
With offices located in Orange County, Los Angeles, San Diego, Riverside, Torrance, West Covina, Sherman Oaks, Victorville, San Bernardino, and Ventura, Wallin & Klarich will always be available to you wherever you happen to live. To speak with a Wallin & Klarich family law attorney today, please call (888) 749-7428. We will get through this together.