Family Law Attorney

Set Asides Cannot be Based on Inequity

An unequal division of assets was the basis for the motion to set aside in In re Marriage of Heggie.

The spouses in this case signed a stipulated judgment that divided all of their assets including IRA accounts held by each party. The husband agreed to give his wife a lump sum in the amount of $47,578.09 from his IRA. The wife kept hers in the entirety. For some reason, the instructions for the IRA rollover were provided about three weeks after the judgment was entered. Three weeks after the instructions were sent the money was transferred to the wife. Six months later, the stocks in the IRA the husband kept, increased substantially. The wife believed she was entitled to that growth.

California Code of Civil Procedure section 473(b) allows a party to file a motion to ask the court to set aside a judgment within six months from the date the judgment was entered. The wife filed a motion to set aside the judgment a day before the six month period was about to expire based on the fact that some of the accounts in the IRA that husband kept had increased so substantially. The trial court granted the motion to set aside the judgment, and the husband appealed.

The appellate court agreed with the husband and found that the family law judge abused its discretion. It stated that Family Code section 2123 prohibits the setting aside of a judgment, just because it was inequitable when made.

CCP 473(b): The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

FC 2123: Notwithstanding any other provision of this chapter, or any other law, a judgment may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate.

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as the set aside of a judgment or any other divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not address other factors which may play a significant role in a particular dissolution. Circumstances in your divorce may alter the results in your dissolution.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.

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