Vacating a divorce judgment in California for mistake

Vacating a divorce judgment in California for mistake is the topic of this blog post. 

Vacating a divorce judgment in California on the grounds of mistake is authorized by the provisions of Family Code section 2122(e). This motion can also be filed in a legal separation or nullity (annulment) case in California.

The party requesting that the divorce judgment be vacated on the grounds of mistake must make an adequate showing of mistake and must also show that the mistake materially affected the original outcome and that they would materially benefit from the granting of the relief.

The moving party must also file their motion within the time period specified in California law.

Family Code § 2121 states that,

“(a) In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter.

(b) In all proceedings under this chapter, before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.”

Family Code § 2122 states in pertinent part that, “The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following:

(e) As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake shall be brought within one year after the date of entry of judgment.”

At least two published California Court of Appeal decisions have stated that the legal standard of mistake under Family Code § 2122(e) is much broader than the extrinsic mistake standard applied under the former law.

Another advantage is that the mistake can be a mistake of fact or of law.  In fact one recent published California Court of Appeal decision upheld the validity of a motion under Family Code section 2122(e) based only on a legal conclusion that was erroneous.

And there is yet another advantage as there is no showing of wrongdoing required in order to obtain relief.

A failure to make a full disclosure regarding a community asset may be a basis for setting aside a judgment and any underlying Marital Settlement Agreement as well as where there has been an invalid waiver of the final declaration of disclosure requirements.

Attorneys or parties who would like to view a portion of a sample 10 page motion to vacate a California divorce judgment on the grounds of mistake containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can use the link shown below.

Sample Motion to Vacate California Divorce Judgment for Mistake by Stan Burman on Scribd

 


Attorneys or parties in California that would like more information on a California divorce document collection containing over 45 sample documents including a sample motion to vacate a divorce judgment for mistake can use the link shown below.

https://legaldocspro.myshopify.com/collections/frontpage/products/california-divorce-document-collection

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.