Family Law Judgments MAY be Set Aside Due to Fraud!

            Civil litigants have the duty and obligation to be transparent with one another. Underhand conduct and trickery cannot and should not be tolerated by the trial court. This extends to the filing of documents with the court and representation made to adverse parties. These requirements are exponentially increased when dealing with a dissolution matter between spouses. The existence of both a confidential and fiduciary relationship requires that parties not only be transparent but also act in accordance with the utmost level of integrity and good faith dealing. When individuals seek to circumvent said requirements, the trials courts have the ability to right the wrong and set aside fraudulent and unjust orders. 

         Code of Civil Procedure, Section 473 provides in part as follows, 

"The court may, upon any terms as may be just, relieve a pa1iy 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." 

         Cases interpreting this statute have declared that the law strongly favors trial and disposition on the merits. As a result, any doubts in applying this code section must be resolved in the favor of the paiiy seeking relief from default. 

          "Since the law strongly favors trial and disposition on             the merits, any doubts in applying section 473 must be           resolved in favor of the party seeking relief from            
        default.For that reason, a trial court order denying relief          is scrutinized more carefully than an order permitting             trial on the merits." Henderson v. Pac(fic Gas & Electric           Co. (2010) 187 Cal.App.4th 215,230 (Internal citations           omitted) (Emphasis added) 

          Mistake is tested by "the reasonableness of the misconception ... " Toyota Co., Ltd v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1111. It is reasonable for a person to not know he is involved in a divorce if he or she has never been served with the initial moving papers. The situation becomes even more understandable when the parties continue to live together, raise a child together, vacation together, go out on family dinners together and have sex together. 

           In re Marriage of Jacobs (1982) 182 Cal.App.3d 273, provides guidance on what facts constitute mistake or excusable neglect. In Jacobs, a judgment was set aside in a dissolution case where the wife signed a stipulation which resolved the property division issue in the hallway at the time of a hearing regarding temporary support. In a motion to set aside the judgment based on this stipulation, wife stated that she was unprepared to discuss property settlement, believing that the only issue to be addressed was temporary support. Wife stated that she was very confused and distressed when the discussion turned suddenly from issues of temporary support to a settlement of the entire case. Wife was represented by counsel, but stated that her own attorney was not well prepared. 

             If you are met with a potential set aside, call us! We are more than capable of handling such an issue.


Patrick Baghdaserians, CFLS
Baghdaserians Law Group
Family Law Attorney and Expert Located in Pasadena, CA


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