Do I Need to Set Aside My Divorce Decree? / by Cassandra Hearn

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The end of a divorce case is a day that all litigants look forward to.  After the divorce decree is entered, parties have some closure and can more easily move forward with the next phase of their lives. Unfortunately, in some situations after the divorce decree is entered, one of the divorced parties may think it is necessary to set aside the divorce decree, or judgment. California has very specific laws that dictate when and why a divorce decree may be set aside.

California Code of Civil Procedure Section 473  states that a divorce party may apply to the court to set aside a divorce decree for reasons of “mistake, inadvertence, surprise, or excusable neglect.”  If a person wants to use this provision to set aside a decree, he or she must file the request within six months of the entry of the decree. California Family Code 2122 provides additional opportunities for relief beyond the six month period if the reason for the set aside is perjury, actual fraud, duress, mental capacity, or failure to make mandatory disclosures.

Setting aside a divorce decree is not generally looked upon very favorably by courts. The reason for this is that the court and the law want to encourage finality of judgments. Allowing decrees to be frequently set aside would mean no one could consistently rely on a divorce settlement or final order.

Whether you need to set aside your decree is typically a difficult and nuanced decision. If you believe that your former spouse lied about assets, you made a legitimate mistake about the nature of a particular debt, or you were coerced into settling on an agreement you did not actually want, then you may want to consider filing a motion to set aside. However, in most cases, divorce litigants will be better served by requesting a modification of particular terms. For example, if you and your spouse agreed to a particular child custody arrangement and just six months later you discover that the agreement is simply not working well for your child, modification of the order may be the appropriate remedy, rather than setting aside the order and starting over. In essence, a set aside should not be used to remedy “buyer’s remorse” or fix a provision that is not working the way you had envisioned at the time of settlement.

If you have questions about whether your decree should be set aside, you should act quickly. Call us today at 619-800-0384 and let us talk with you about your divorce.