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How Do I Defend a Request by My (Former) Spouse to SET ASIDE our Support Orders?

Q. My former spouse claims that I lied on my Income and Expense Declaration and has filed a motion to set aside that order, seeking more money. How do I oppose this?


A. This type of support modification request typically occurs in two situations: Where the other party alleges that you aren't paying enough because you understated your income, or where you wound up paying too much because the other party lied in their Income and Expense Declaration [FL-150], or some other sworn pleading filed with the Court.

If you are defending a support set aside motion, here are some suggestions beyond simply denying that you lied about anything, particularly if it does appear that your numbers were to any extent questionable or inaccurate.

First, remember that the moving party has the burden of introducing evidence that establishes more than that the support order was a) inequitable when made, or b) that subsequent circumstances caused the the supported ordered to be inadequate or excessive. Family Code section 3692. Argue that, at best, that is all they have shown and by itself that is not enough.

Second, the time for filing a set aside request is strictly limited by statute. An 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. Be sure to assert all time based defenses, and even if the request was technically within the permitted time frame, nonetheless urge that the other party unreasonably delayed filing their motion, and that this caused you specific detriment (i.e., that you took some action in reliance upon the amount of the support award, like signing a lease agreement for an apartment you otherwise could not have afforded).

Look to see whether the party seeking the set-aside ever said something in their court filings that might bite them now, and draw the court's attention to them.

On April 8, 2010, the case of In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900 was decided. In Zimmerman a mother filed a motion to have all child support recalculated going back five years, on the ground that the father had committed fraud and perjury by concealing income in his earlier FL-150's, which the court had then relied upon.

However, because she had - within those five years - filed with the Court a declaration making reference to these very same claims, the trial court properly found that more than six months had passed since she had discovered, or reasonably should have discovered, that she fraud and perjury claim existed and so her claim was time-barred.

This outcome is important to keep in mind, since family law litigants are frequently claiming in their papers that the other side is lying or concealing information, but often cannot prove it yet. Zimmerman cautions us that it is an unwise practice to mention these claims prematurely (beyond at the initial hearing), because if such statements appear in the record the defending party can seize upon them to point out that "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, because unsubstantiated personal attacks don't sit well with family law judges.

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Thurman W. Arnold III


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