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How Do I Defend a Request by My (Former) Spouse to SET ASIDE our Support Orders?
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Q. My former spouse claims that I lied on my Income and Expense Declaration and filed a motion to set aside that order, and is now seeking more money. What are my rights?
A. This type of support modification can occur in two situations: Where it is alleged that you aren't paying enough because you committed some fraud or where you alleged you are paying too much because the other party committed some fraud in connection with an Income and Expense Declaration [FL-150] or some other sworn pleading filed with the Court.
If you are defending a support set aside motion, there are three bits of law you need to know.
First, there are important time limitations on when a motion must be filed before a Court will set aside a prior support order. As action based upon fraud or perjury must be brought within six months after the date on which the complaining party discovered or should reasonably have discovered the fraud or perjury. Family Code section 3691.
Second, the moving party must convince the trial court that all the other party has established is that it was a) inequitable when made or b) subsequent circumstances caused the the supported ordered to be inadequate or excessive, but that nothing more has been proved that that those grounds are insufficient by themselves. Family Code section 3692.
Third, on April 8, 2010, the case of In re Marriage of Zimmerman was decided and certified for publication and it is the first reported California appellate decision to squarely address these family code provisions. You will want to cite this case to the judge.
In Zimmerman a mother and former wife filed a motion to have all child support recalculated going back some five years, on the ground that the father had committed fraud and perjury with respect to prior order by concealing income in his earlier FL-150's. However, because of facts alleged in earlier pleadings she had filed with the Court a declaration making reference to these very same claims, the trial court was affirmed when it found that more than six months before she filed the Motion she had discovered or reasonably should have discovered the alleged fraud and perjury.
This is a very important case in this area because family law litigants are frequently claiming in their papers that the other side is lying or concealing information. This case stands for the proposition that it is unwise practice to even mention these claims prematurely, because if one does then the defending party will point to those statements - 'you see, she knew she had this claim two years ago.' It is always unwise to make statements to the Court about dishonest conduct on the part of the other side where there is no solid proof, yet, in any event.
Thurman W. Arnold III
http://www.ThurmanArnold.com
4/13/10
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Posted By Thurman Arnold on
April 13, 2010 05:27 am |
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