The Appellate Court in Thorne denied the ex-wife’s motion to set aside the judgment in her request to modify the judgment.
FACTUAL BACKGROUND LEADING TO THE DISSOLUTION DISPUTE
The parties were married for six years. The husband was in the military. They obtained the assistance of the Judge Advocate General (“JAG”) to help them through the divorce process. The parties negotiated a settlement with the help of JAG. In the agreement the wife received sixteen percent of her husband’s military retirement. Neither party was represented by a family law lawyer.
After the judgment was entered, the ex-wife learned that in California retirement benefits are divided pursuant to the community property interest in the retirement plan rather than a straight percentage of the retirement pay. She motioned the court to set aside the judgment based upon two theories. The first was that one of the assets had been omitted from the judgment, the alternate theory was that there was extrinsic mistake in obtaining the judgment. The trial judge granted her motion, set aside the judgment, and entered a judgment which divided the community property interest in the retirement account.
APPEAL OF THE DISSOLUTION ORDER
The Sixth Appellate District Court disagreed with the trial court. It held that if an asset is divided in an dissolution judgment, then the asset is not considered an omitted asset. The fact that the parties did not agree to an equal division of the asset will not sustain a motion to set aside the judgment. In addition, the appellate court would not set aside a judgment based upon mistake in this case, because the mistake was intrinsic and one in which the ex-wife could have ascertained the truth before she signed the judgment.
If you are in Orange County and need a family law lawyer to address retirement issues in the dissolution of a marriage or any other divorce matter such as legal separation, annulment, spousal support and/or property division, contact our law office located in Laguna Hills. Conveniently located off of the 5 and 405 freeway at Lake Forest.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102Visit us at
Please note that the posting of this information does not constitute legal advice for a divorce in Orange County. Facts and circumstances of the dissolution proceedings may alter the required action and analysis in any given family law case.