Divorce or legal separation proceedings are already emotionally taxing on the involved parties, especially when a verdict is unfair. Setting aside judgment is a particularly complex process that you cannot handle without an experienced family law attorney.
The Code of Civil Procedure and Family Code has many applicable laws you will need help navigating. An easy way to avoid this situation entirely is by contacting an attorney before you sign any agreements but, assuming you are already in an unfavorable position due to a signed settlement, we will address your options at that point.
This legal guide will help you understand the process of setting aside judgments and will help you understand how the process is started.
How Do I File A Set Aside Order in Kern County, California?
So you signed a settlement agreement in your divorce or separation case, and now you think there is something legally incorrect about it. First, you will need to establish legal ground for your order. Your attorney can assist you in this process. An attorney can scan the agreement and establish permissible legal grounds for your set aside order.
It starts with an RFO.
After speaking with an attorney and establishing your legal footwork, you will need to file an RFO or a Request for Order. This document is the first part of the process for setting aside a judgment. It contains certain forms and other pleadings. In the RFO, you will address what relief you are seeking and why. Additionally, you can file another declaration that sets forth your testimony as to why the judgment should be set aside. You and your attorney will need to write it on a pleading paper, sign and date it.
You have to file the RFO in the same court which reached the initial judgment in your divorce or separation case. The standard recommendation is that you file a Points and Authority for your motion when trying to set aside a judgment in a family law case.
What Law Can I Cite For My RFO?
What laws you reference in your RFO depend entirely on your legal argument for a set-aside judgment motion. In family law, a common procedure for arguing against the judgment is under Civil Procedure 473(b) which is seeking relief from the judgment against you due to your or your attorney’s mistake, excusable neglect, inadvertence, or surprise. If you are claiming it under your own mistake or neglect setting aside judgment is at the court’s discretion. However, if it was a mistake made by your attorney, the court must grant you relief from the judgment.
There are only two avenues that constitute a mistake or neglect when citing Civil Procedure 473(b) as the argument in your RFO. There is a mistake of fact and a mistake of law. These are defined as the following: a mistake of fact is when you believe the facts are different than what they actually are, and a mistake of law is to misunderstand the legal consequences of known facts.
You can apply a claim of surprise or inadvertence to your proceedings if you are placed in a situation to your detriment through no fault of your own. Considering surprise or inadvertence, the court assesses whether these occurred by determining if an average person under similar circumstances might have made the same error as you.
Excusable neglect is applied to your pleadings if you suffer from a disability, such as mental confusion, certain illnesses, or if English isn’t your first language.
How Much Time Do I Have To File My Motion?
You have six months to file your relief motion under Civil Code Procedure 473(b). It is important to note that when you are seeking to set aside a default judgment, the six month period begins from the entry of default, not the entry of judgment. Or in the case of citing your attorney’s mistake as the reasoning for relief, the six-month period begins from the entry judgment date.
Regardless, It is important that you act fast if you decide to file a motion to set aside a judgment. Six months may seem like a long time, but legal proceedings can take months, not to mention the time it takes finding the right attorney for you.
Contact an Experienced Kern County Family Law Attorney
Setting Aside a judgement requires an attorney’s detailed expertise.
At Azemika & Azemika Law, we are dedicated to providing aggressive and knowledgeable service at an affordable cost. It is a fact that a breakdown in a relationship or marriage can be stressful and traumatic. With a combined total of over 42 years of experience in Family Law Matters, our partners are exclusively devoted to assisting our clients through these difficult times by restoring the peace of mind you and your loved ones deserve.