ACFLS
State Bar of California
AVVO
Santa Clara County Bar Association
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Set Aside of Prior Support Orders

Set Aside of Prior Court Orders

When going through a divorce, custody and visitation, or support proceeding at some point there will be orders made whether by agreement of the parties or order of the court. For those involved in a more contentious case, it is not uncommon for at least one party to sometimes feel frustration or dissatisfaction with the orders that are made. In such cases, that individual may start asking how they can set them aside. Although it is possible to set aside a court order, there are only certain circumstances where such relief is warranted.

For example, a set-aside may be warranted when there has been an order made due to the requesting party’s mistake, inadvertence or excusable neglect (See Code of Civil Procedure Section 473(b)). However, even if a party qualifies to set aside a motion under CCP Section 473(b), the motion must be timely filed. The statute of limitations to file a motion under CCP Section 473(b) is defined as a reasonable time not to exceed 6 months from the time the order was filed. It is imperative that this deadline not be missed as it would then be a (procedurally) fatally flawed motion, which must be denied.

Similarly, a Judgment may be set-aside for a number of reasons as set forth in California Family Code Sections 2120 and 2122. Some of the reasons include fraud, duress, perjury, mental incapacity, a failure to comply with the rules requiring complete disclosure of finances, and mistake. Perhaps one of the most prevalent reasons behind a motion for set-aside is a party’s failure to provide full and complete disclosures as required under the Family Code. As discussed as some of our other articles, throughout the divorce process in California, each party is required to complete financial disclosures. These are comprised of an Income and Expense Declaration and Schedule of Assets and Debts. The purpose of these disclosures is to provide a full picture of each party’s assets and debts as well as income and expenses. Therefore, each party must provide a complete list of all assets and debts (i.e. bank account numbers and balances, homes owned, vehicles owned, credit card debts, etc.) and information regarding all sources of income. This allows the parties to engage in meaningful settlement discussions and make fully informed decisions regarding the division of assets and debts and setting of support. When the parties are unable to reach agreements on these issues, it is important for the court to have this information so that the judge may make the correct orders. If it is later discovered that a party failed to comply with these disclosure requirements, the court may set-aside any orders made that stem from such a failure to disclose. If a motion to set-aside is to be filed due to such a non-disclosure, it must be done within 1 year after the nondisclosure was (or should have been) discovered. It is important to note that this statute of limitations does not apply to each of the different reasons justifying a set-aside under California Family Code Section 2120 and 2122. Each basis for a set-aside has a different statute of limitations.

Mere dissatisfaction or second thoughts are not a valid legal basis for requesting to set-aside a support order. Here at Mello & Pickering, LLP, our attorneys are highly skilled and experienced in setting aside prior court orders, as well as fighting against requests to set-aside orders when such requests are unwarranted.

If you have questions regarding a set-aside of your orders, or any other family law issue, call our office for a 20-minute phone consultation or an in-person appointment at (408) 288-7800.

Mello & Pickering, LLP explicitly disclaims all liability related to actions performed or not performed based on any or all of the content on this Web site. View our Disclaimer page for more information.

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