Our firm gets many calls from potential clients who have already gone through a divorce or paternity matter which resulted in a judgment or order. All child and spousal support amounts have been decided on and child visitation is pretty clear. They call us because things have changed or things haven’t worked out and they want us to help them get the support or visitation terms modified.
Asking a judge to modify the terms of a judgment or order is often a good idea in these situations. However, there may be another option that most callers don’t even know about, and, sometimes, this other option is much, much better. This option is not just a modification of an existing judgment or order, but it is a complete set aside of the existing judgment or order.
When a party asks a judge to set aside a judgment, s/he is asking the judge to relieve him or her of the judgment, or part of the judgment, and the obligations, responsibilities, and benefits that go along with it. The same is true when asking a judge to set aside an order. The distinction between a judgment and order is important when we’re talking about set asides because the laws are different for a judgment and an order.
There are only a handful of reasons that would allow a judge to follow through with a set aside. As found in California Family Code §2122, the reasons a judge may set aside a judgment are: 1) actual fraud; 2) perjury; 3) duress; 4) mental incapacity; 5) mistake; and 6) failure to comply with disclosure requirements. As found in California Family Code §3691, the reasons a judge may set aside an order are: 1) actual fraud; 2) perjury; and 3) lack of notice.
The setting aside of judgments and orders is not as common as their modifications. However, a set aside may be more beneficial for you and your case than a simple modification. Of course, that won’t always be true, so it is important to speak to a lawyer knowledgeable in the area of family law before you make any decisions. A good family lawyer will at least consider a set aside as a possible option, rather than ignoring the possibility altogether and heading right into seeking a modification.