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Post Judgment Motions

Setting aside a divorce judgment is not favored by courts because courts want to encourage finality of judgments to provide closure and certainty. If the courts allowed Judgments to be set aside with frequency would mean no one could consistently rely on a divorce settlement or final order. There are very narrow reasons a judge can cancel—set aside (or vacate)—an order or a judgment. Before you ask, you need to figure out if you have a legal reason. You must include the specific legal reason in your request. However, whatever you do, you will want to act quickly because there are deadlines for how long you have to ask the judge to set aside the order. Setting aside a divorce or other family law judgment is particularly complex and requires the assistance of a qualified attorney to navigate through the applicable sections of the Code of Civil Procedure and Family Code.


I discovered an asset that was not disclosed during the divorce and was not divided or adjudicated.  What are my options?

You have a few options.  First, you can simply ask the court to divide the asset (or debt), as provided by Family Code § 2556, which states in part that “the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding.”  If the asset or debt was simply forgotten about, or accidentally omitted, generally it will be divided equally.  However, if the court finds good cause that justice requires that it be divided unequally, the court also has the power to award more or all of the asset to one party.  This usually requires a showing of fraud or an intent to conceal the asset by one party, which is not always an easy thing to prove.

While less usual, you can also ask the court to set aside the judgment in its entirety, if there is some reason that doing so makes sense.  For instance, if the omitted asset is integral to the division of other assets, or other parts of the judgment.  For instance, a hidden stream of income from an asset (like a stock account or business) could materially affect spousal support and child support orders that were made, requiring additional portions, or all of a judgment to be set aside.  However, if you wish to attempt to set aside a judgment, you must be aware that there are statute of limitations that can bar you from seeking relief if you wait too long.  Generally, most causes to set aside a judgment for fraud, perjury, duress, or mistake must be brought within one year.  There is no statute of limitations to simply divide an omitted asset or debt, however.

I had a default Judgment entered against me in my family law matter.  What are my options?

If a default judgment was entered against you, and you had notice of the Petition, you can ask the court to set aside the default judgment, provided you do not wait any longer than 6 months from the time of the entry of the judgment.  This request is permissive, meaning a court is under no obligation to set aside a default judgment.  The law provides that if a default is taken against you due to your mistake, inadvertence, surprise, or excusable neglect, you can ask the court to forgive your mistake and set aside the judgment.  Again, because this is discretionary, it is imperative that you have a really good reason (perhaps you were sick or some other unavoidable situation prevented you from responding to the Petition, or you were on active duty military service) and that you file a motion to set aside the default as soon as possible.  Even if you have a really good reason, but if you wait to ask the court to help, the court can and will deny your request if you wait too long (even if it has been less than six months!).

If the default is taken against you because of the mistake of an attorney, the court MUST set aside the default if the attorney files an affidavit attesting to his or her mistake.  However, the attorney will also likely have to pay the attorney's fees for the other party, and can impose a penalty on that attorney. 

If you never actually received or saw a copy of the Summons and Petition, you can also ask the court to set aside the judgment.  If you were sent a Notice of Entry of Default, you must file and serve the request to set aside within 180 days from the date you were served that notice. If the court didn't have your address and never mailed you a Notice, you must file and serve the request to set aside within 2 years of the date the default judgment was entered.  You must also prove that you were not avoiding service of the Petition and Summons.

Are there other reasons or ways to set aside a Judgment?

Setting aside a judgment can be difficult and buyer's remorse often times causes a client to wonder if he or she can get a “do over.”  In short, it is uncommon to have a judgment set aside.  However, if the other party committed perjury, and it can be proven by clear and convincing evidence, and that perjury materially prejudiced you, you can seek to set aside a judgment.  Additionally, if you believe you lacked metal capacity to enter into an agreement, you can ask the court to undo the judgment.  If you suffered duress, that could also give rise to a request to set aside a judgment.  Duress, however, is something much more than just feeling pressured, trapped, or without better options.  Duress can include for example, threats of violence against you or your children, blackmail or threats of exposing sensitive secrets.

You can also request a Judgment be set aside if you or your spouse made a mistake in the papers or agreement, or if your spouse failed to comply with the required financial disclosures.  Again, all of these situations come with applicable statute of limitations, so it is important that you act quickly when you discover the problem.

What are some reasons why I cannot set aside a Judgment?

If you simply do not like the terms of your judgment, or even if you think it's not fair, it may not be possible to undo a stipulated agreement. For example, 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.  If you were pressured to sign an agreement you didn't like, that is also often not a sufficient reason to cause a court to set aside an agreement.  However, sometimes parties can agree to change the terms on their own by agreement.

If you have an issue where your divorce case is completed or you have some other family law judgment, but you think you may want to set aside the judgment, contact our office today.  Our office has experience with this area of law and can assist you in helping you decide whether seeking a set aside is advisable and if necessary, assist you in moving forward.

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