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June 14, 2018
How do you set aside, or “vacate,” an order, or judgment, which you now regret?

We often meet with people who, when self-represented or represented by uncommitted or inexperienced counsel in their family law cases, have ended up with orders or judgments they entered into by agreement, and now regret.

Your signature is on that document; the judge’s signature is on that document. Does the law provide any recourse for you to fix your mistake?

Yes. Yes, it does.

Two California Codes, in particular, allow for a family law litigant to seek relief from a judgment or order under those circumstances: Code of Civil Procedure § 473 and Family Code § 2122. (While these also allow for orders/judgments to be set aside under other circumstances, as well, for the purpose of this article I am focusing on stipulated agreements/judgments.

Code of Civil Procedure

The Code of Civil Procedure allows for motions to set aside orders/judgments for up to 180 days after the last signature on the document. The grounds for such a set-aside motion under CCP § 473 are: mistake of law or fact, inadvertence, surprise, or excusable neglect.

Some brief examples may be helpful to the reader. For instance, “mistake of fact or law” would be when you enter into a judgment that opposing party will receive half the equity in the home, believing he or she was on title to the home; and then discovering that they had no interest in the home. (That might also qualify as a mistake of law under certain circumstances). While that doesn’t make a set-aside motion a slam dunk, that’s sufficient to get the court to take a good look at your motion.

As another example, “excusable neglect” has been successfully raised in circumstances where a default judgment was taken while the respondent was dealing with a family emergency, or was hospitalized, and didn’t respond within the 30 days required by the Summons.

Family Code

Family Code § 2122 (e) provides for set-asides of an onerous order based on similar facts but extends the deadline for filing to one year – giving the litigant an extra six months. However, it is important to note that Family Code § 2122 doesn’t allow that extension of time for “inadvertence, surprise, or excusable neglect.” Family Code § 2122 (e) provides that the Court may set aside the judgment or order based on “mistake, either mutual or unilateral, whether a mistake of law or fact.” This statute, in particular, is designed to help litigants who entered into an agreement they now regret.

You’ll note that I limited this discussion to specific portions of Code of Civil Procedure § 473 and Family Code § 2122. While there are other grounds on which a motion to vacate/set side may be based, those are limited strictly by statute. Often people will come to us and we will find that the facts support an additional allegation or two based on fraud, perjury, duress, mental incapacity, or some other circumstance which the law allows the court to consider for such a motion.

If you are considering filing your own motion to set aside or vacate a judgment you now regret, I strongly suggest you contact competent counsel. The statutes appear to be clear – but that’s deceptive, as mountains of case law have been written to interpret these two statutes alone.

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