sddad said:
IAAL - No he was not represented by counsel. They did the divorce themselves and filed the paperwork through a paralegal.
My response:
Well, unless this occurred within the past 6 months (C.C.P. Section 473), or he can prove he was hopped up on drugs, or drunk, all the time, then he can pretty much forget it.
Once the time for Ca Civ Pro § 473(b) relief has expired, a dissolution, nullity or legal separation judgment adjudicating support or a division of property may be vacated (in whole or in part) only on one of the grounds and within the time limits specified in Ca Fam § 2122 (below). [Ca Fam §§ 2121, 2122(a); Marriage of Heggie (2002) 99 Cal.App.4th 28, 32, 120 Cal.Rptr.2d 707, 711; Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1344, 113 Cal.Rptr.2d 849, 856]
Actual fraud:
"Actual fraud" where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding. [Ca Fam § 2122(a)]
This ground tracks the general parameters for traditional equitable set-aside relief explained in Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1060-1067, 202 Cal.Rptr. 116, 121-128. But the amended statute (applicable to judgments that become final after 2001) drops the limitation in Stevenot that denied relief where the ignorance resulted from the moving party's own lack of care or attention in the underlying proceedings. Also, unlike Stevenot, Ca Fam § 2122 sets an outside time limit (below), after which relief on the ground of "actual fraud" is forever barred.
One-year limitations period:
An action or motion based on fraud must be brought within one year after the date on which the complaining party discovered, or should have discovered, the fraud. [Ca Fam § 2122(a)]
By analogy to Ca Civ Pro § 338(d) (statute of limitations for fraud), the Ca Fam § 2122(a) one-year period begins to run on the date the complaining party discovered or should have discovered the facts constituting the fraud, not the date he or she began to suspect the fraud. [Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1149, 97 Cal.Rptr.2d 707, 719]
Perjury.
[Ca Fam § 2122(b)]
Any perjury in the underlying proceedings that materially affected the outcome is apparently a cognizable ground for relief. This includes perjured declarations of disclosure (see Ca Fam §§ 2104(a), 2105(a)--referring to the commission of perjury "by a party") and a perjured waiver of the final declaration of disclosure (Ca Fam § 2122(b)); and, because § 2122(b) does not otherwise provide, it may also include perjured testimony.
One-year limitations period for perjured declaration of disclosure, waiver of final declaration, or income and expense declarations:
"An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or the current income and expense statement" must be brought within one year after the date the complaining party discovered or should have discovered the perjury. [Ca Fam § 2122(b)]
As with a set-aside claim for fraud (above), commencement of the § 2122(b) one-year period is triggered by discovery of the facts constituting the perjury. [Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1149, 97 Cal.Rptr.2d 707, 719]
An amendment to § 2122(b) (applicable to judgments that become final after 2001) added a perjured § 2105(d) waiver of the final declaration of disclosure. Note that the "perjury" can occur by signing the waiver without fully complying with the statutory fiduciary disclosure obligations . . . because, by executing a § 2105(d) waiver, each party is representing under penalty of perjury that those obligations have been fulfilled. [Ca Fam § 2105(d)(5)]
Time limit for other perjury?
Curiously, the statute does not set a time limit on § 2120 et seq. relief predicated on perjury that occurred in any other document or proceeding (e.g., an accountant's perjured valuation declaration or any witness' perjured testimony). Arguably, the same one-year limitations period should apply (in order to accommodate the underlying policy of "assuring finality of judgments," Ca Fam § 2120(c)) but that is not statutorily-prescribed.
Conceivably, the Legislature's failure to specify a time limit for relief based on other perjury might implicitly mean the only perjury cognizable under § 2120 et seq. is a perjured declaration of disclosure, a perjured waiver of the final declaration of disclosure, or a perjured income and expense declaration. But that is not what the statute states; and the issue thus awaits judicial or legislative clarification.
Duress.
[Ca Fam § 2122(c)]
The statute offers no definition of cognizable "duress." Presumably, courts should be guided by prior case law on the subject--i.e., intentional conduct carried out by threats, importunity or any kind of mental coercion that destroys one's "free agency" and causes the aggrieved party to do something against his or her will. [See Marriage of Baltins (1989) 212 Cal.App.3d 66, 260 Cal.Rptr. 403 (predating § 2120 et seq.) - - "equitable" set-aside relief granted where H induced W's consent to inequitable property settlement through acts of psychological coercion, threats, misrepresentations and financial control]
Under this standard, there is no cognizable "duress" where the record shows the complaining spouse's consent to a stipulated property division and support judgment was "freely, knowingly and voluntarily given"; and especially where he or she was thoroughly probed by the judge about his or her understanding and had ample opportunity to reflect on the proposed judgment and obtain independent advice before signing the stipulated judgment. [Marriage of Rosevear (1998) 65 Cal.App.4th 673, 685-686, 76 Cal.Rptr.2d 691, 699--fact W did not sign stipulated judgment until 3 months after underlying settlement conference "is strong evidence what she was experiencing was not duress, but 'buyer's remorse'"]
Two-year limitations period:
An action or motion based on duress must be brought within two years after the date of entry of judgment. [Ca Fam § 2122(c)]
Mental incapacity.
[Ca Fam § 2122(d)]
Again, no statutory definition is offered. Presumably, the "mental incapacity" contemplated is that type of impairment sufficient to avoid a contract or testamentary disposition--i.e., generally, inability to understand the nature and consequences of one's act (see Ca Civil § 38 et seq.--referring to persons of "unsound mind"; Ca Probate § 6100.5(a)(1)--mental incapacity to make a will).
Two-year limitations period:
An action or motion based on mental incapacity must be brought within two years after the date of entry of judgment. [Ca Fam § 2122(d)]
Mistake:
As to stipulated or uncontested judgments (or any part of a judgment stipulated to by the parties), mutual or unilateral mistake--whether a mistake of law or a mistake of fact. [Ca Fam § 2122(e)]
Cognizable "mistake" broader than "extrinsic mistake" standard:
Ca Fam § 2122(e) effectively opens up many judgments to post-Ca Civ Pro § 473(b) relief that would not have been subject to an "equitable" set-aside under the more stringent "extrinsic" mistake (or "extrinsic" fraud) standard of prior law. [See Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1345, 113 Cal.Rptr.2d 849, 856, fn. 10; Marriage of Varner (1997) 55 Cal.App.4th 128, 144, 63 Cal.Rptr.2d 894, 904]
For instance, valuing an asset favorable to oneself was not considered remediable "extrinsic" fraud or mistake under prior equitable set-aside law. But Ca Fam § 2122 abolishes that distinction. [Marriage of Brewer & Federici, supra; Marriage of Varner, supra]
Any "mistake" - - be it a mistake of fact or of law - - is cognizable under § 2122(e). Indeed, it appears that grounds not otherwise recognized by the statute probably can be alleged under the general "mistake" umbrella.
No wrongdoing required:
Relief is properly granted pursuant to § 2122(e) on the basis of mistake regardless of any finding of wrongdoing. [Marriage of Brewer & Federici, supra, 93 Cal.App.4th at 1347, 113 Cal.Rptr.2d at 858 (W honestly stated value of one of her pensions was "unknown" but valuation information was readily available to her)]
Inequitable result required:
However, it is fatal to a claim of material mistake if the stipulated or uncontested judgment under challenge is not shown to be "inequitable" to the complaining party. "
nless the [spouse seeking § 2122(e) relief] was able to establish that the judgment was in fact inequitable to her, there could be nothing for her to have been mistaken about in stipulating to that judgment." [Marriage of Rosevear (1998) 65 Cal.App.4th 673, 685, 76 Cal.Rptr.2d 691, 698-699 & fn. 11 (brackets added)--even assuming W misunderstood terms of stipulated property division and support judgment, she failed to establish it was "unfair and inequitable to her"]
One-year limitations period:
An action or motion based on mistake must be brought within one year after the date of entry of judgment. [Ca Fam § 2122(e)]
IAAL