Written by Carla Hartley, Managing Partner, HARTLEY, MAXWELL, CASTELLANO & LAMAS
I had a rather heartbreaking meeting earlier this week, and it’s been chewing at me.
This was one of those chance encounters we all tend to have. You’re out in public and suddenly you’re comforting a stranger. This woman had been badly abused during marriage and, when she got a chance to leave, she took it. He “let her go;” all she had to do was sign off on a judgment that, pretty much, gave him almost everything: waive spousal support, waive her interest in the house, waive her interest in the business, leave the kids with him, the works.
This is heartbreaking to me for three reasons:
First, a lot of evidence existed at the time of the judgment that would have supported a restraining order against him. A conviction for harming a child, and several calls to the police department during marriage. Damage to the woman. We could have ejected him from the house, and she would have been in the home, with the kids safe, receiving support.
Second, the abuser – deprived of his primary victim, his wife – did the typical abuser move and replaced wife with his eldest daughter as his preferred victim. So, we have a second victim. The other children are victims, as well, left in the home with an abusive spouse. Wife’s thought, that he “was a good dad” and had “only abused me, never the kids” was, tragically, symptomatic of what abused spouses tell themselves. A man who is abusing his wife is not a good dad. Further, that indicates her deep denial of Husband’s conviction for earlier harming a child.
Third, it was simply too late. The Judgment was entered far too long ago for me to set it aside and make it right. She’d be entitled to half the equity in the home, half the value of the business, spousal support, custody of her kids, child support… but it is too late.
The statutes for setting aside, or vacating, a judgment are straightforward, but have hard timelines. The easiest “set aside” statute is under the Code of Civil Procedure, for “mistake of fact or law, surprise, inadvertence, or excusable neglect” but that motion has to be brought within 6 months of entry of Judgment. The next easiest set aside is under a provision of the Family Code and is at the one-year mark from entry of judgment, applying primarily to stipulated or default judgments. The other set asides are available also under the Family Code, for fraud, duress, perjury, mental incapacity, and so forth – but the burden of proof is way higher and the latest deadline for filing is generally within two years from the entry of judgment.
If you know an abused woman – for goodness’s sake, talk her into meeting with an attorney before she does anything. Before she vacates the family home. Before she leaves her kids behind with her abuser. Before she signs away her interest in the community estate, and in support. And if she’s already signed something: check the dates, and if it’s within a year of entry of judgment, get her to knowledgeable counsel.