How to vacate a California divorce judgment on the
grounds of mistake is the topic of this blog post. Vacating a California divorce judgment on the
grounds of mistake is authorized by Family Code section 2122(e). A California legal separation or nullity judgment
may also be vacated on the grounds of mistake.
The party requesting that the 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.
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.”
The legal standard of mistake under Family Code §
2122(e) is much broader than the extrinsic mistake standard applied under the
former law as has been stated by at least two California Court of Appeal
decisions.
Another advantage is that the mistake can be a mistake
of fact or of law. In fact one recent
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.
Yet another advantage is that no showing of wrongdoing
is 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.
The author of this blog post, Stan Burman, is an
entrepreneur and freelance paralegal who has worked in California and Federal
litigation since 1995 and has created over 300 sample legal documents for
California and Federal litigation.
Follow the author on Twitter at: https://twitter.com/LegalDocsPro
You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx
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.
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