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The TIME PERIODS for FILING SET ASIDE MOTIONS DEPENDS....
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Q. Just thought you might want to point out that there is a different code section about setting aside judgments (2122) as opposed to orders (3691). It's important because the statute of limitations is 1 year for judgments and 6 mos. for orders.
Thanks for your excellent articles,
Bruce J.
Northern California Attorney
A. I appreciate you for pointing out that some clarification would be helpful (seriously) - most people won't drop me a note - and sometimes I am slow to respond. ; (
Anyway, I am grateful to hear from you.
As you note, there are different statutes of limitations that serve to potentially cut off or extinguish your right to challenge settlement agreements, judgments, or court orders depending on which of these you are challenging and the grounds for the set aside request (i.e., fraud, duress, mistake, etc.) You need to carefully research and understand these rules as they apply to your situation. Mixing up the statutory time periods may result in the denial of your motion, and even subject you to attorney fees for the costs incurred by the other party. I wrote about a recent case in April, 2010, where this occurred entitled
Marriage of Zimmerman.
With respect orders for support, for instance,
Family Code section 3691 generally sets a six month window on the time to file a set aside of child or spousal support orders.
For settlement agreements and stipulated judgments, Family Code section 2122 sets forth the time limits for filing set aside motions. These time-frames differ depending upon the grounds you allege for the set aside, but generally range from one to two years. Note that grounds for set-aside not only include alleged misconduct of the other party but also your own circumstances that contributed to a mistake or other situation that would tend to make a set aside the fair and just remedy. I recommend that you attempt to justify your motion on every legitimate ground, even if it appears to be time-barred, unless the claims are so unlikely as to appear frivolous.
Look at these statutes carefully. Events that trigger the time to commence running can be tricky and fact specific. This is an area where you need to find competent local counsel, because if you draft the motion yourself you may not recognize that what you thought you needed to say actually undermined or destroyed your claim.
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Posted By Thurman Arnold on
November 21, 2010 09:30 am |
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