What happens when you realize that you made a mistake in the papers filed with the Court for a default judgement? Specifically, what can you do to change the Court’s order? Can you alter something that the Court has approved?
This blog post explores the procedural aspects of Family Code Section 2120 -2129 which codify reasons that you can argue to set aside a judgement after the Court has ruled. Grounds for relief include: duress, perjury, fraud, omissions, and mistake.
If you feel that something was omitted or misrepresented during your divorce because of information you later learn from your ex spouse and the divorce decree was signed by the Judge, you may want to explore the possibility of asking the court to set aside the judgment. As with most litigation, there is risk associated with asking the court to set aside the judgment and you will want to carefully consider the merits of your case and speak with an attorney about the cost of filing these motions.
If you decide to go forward and ask the court for relief, procedurally, you will need to ask the Court to re-open the case. This means you will need to file a notice of a motion to set aside a judgment which will include an Application for Order and Supporting Declaration. A motion to set aside a judgment can be prepared similarly to a noticed motion for temporary orders. In most cases, the notice must be personally served on the opposing counsel and party. Important considerations for filing these motions are statutes of limitations (time constraints) and the grounds or claims made. For claims under Family Code 2120, the statute of limitations accrues when a party should have discovered the facts constituting duress, perjury, fraud, omissions, and mistake. For specific time limits, please see Family Code Section 2120.
Before a court may grant relief, you will need to allege that the grounds for relief materially affected the original outcome of the case. You must also show that you would materially benefit from the relief. You can contact me at Amanda@gordonfamilylaw.com for more information.