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Recent Posts in Fraud and Perjury Category
| April 13, 2010 |
| How Do I Defend a Request by My (Former) Spouse to SET ASIDE our Support Orders? |
| Posted By Thurman Arnold |
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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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| April 13, 2010 |
| What Are My Rights When I Believe My Spouse Committed Fraud in Their Income & Expense Statement? |
| Posted By Thurman Arnold |
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Q. What remedies do you have if you believe your spouse concealed income or lied about assets in their Income and Expense Declaration [Form FL-150]?
A. Family Code section 3691 sets for the grounds and time limits for filing a Motion or OSC to set aside and correct an order for child support or spousal support which was obtained by your present or former spouse, or the other parent. You need to be very careful with these time limits, because they are shorter than other set aside remedies contained in the Family Code (for instance, Family Code section 2122 dealing with property settlements and judgments). It is important get the applicable code sections right, because different time limits apply for seeking relief from the Court.
Family Code lists the grounds for a support set aside as a) actual fraud; b) perjury; and c) lack of notice.
a) Fraud - this occurs when 1) the defrauded party is kept in ignorance or 2) in some manner other than their own lack of care or attention was fraudulently prevented from fully participating in the proceeding. This set aside ground is different from perjury. It applies to a situation, for instance, where you were told that your spouse was not seeking certain orders and so you failed to attend to the hearing only to learn later that in your absence much broader relief was requested than represented. It also applies any time information is provided by the other side that was materially false and when you relied on that false information not knowing that it was false (for instance, a party fails to disclose another job, much higher earnings, or property).
b) Perjury - where the other side has simply lied outright under oath in their Income and Expense Declaration or in the supporting verified application. Be sure to allege fraud as well since a perjurious statement is often a fraud.
c) Lack of Notice - this generally applies to situations where the other side claims you received notice of the proceedings but in fact you were not served. This can be difficult to prove where a proof of service was filed with the Court which itself is perjurious (i.e., your husband's best friend he claims he hand delivered to the documents to you on a day you were in New York).
This section applies equally to orders which were way too high based upon any of the above grounds as those that were way too low.
Family Code section 3691 will not help you in situations addressed in Family Code section 3692, where your support order was merely unfair or subsequent circumstances caused the order to be excessive or inadequate. Section 3692 is your first argument in defending a support order set aside motion.
In any of the above cases, you must file your motion within six months of the time you discovered or reasonably should have discovered the fraud, perjury, or reasonably adequate notice of the order.
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