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How Can I SET ASIDE a SUPPORT ORDER?

Q. A child support order was entered against me without my knowledge, approximately 8 months ago, when my ex-girlfriend filed a motion but never served me with it? It is more than I should have been ordered to pay, since she claimed I make $10,000/month, which isn't close. I learned about it three months after she got it when she garnished my wages. I didn't have the money to hire a lawyer. What do you recommend?


A. A party has six months to move to set aside an order that was entered against through them their mistake, inadvertence, surprise or excusable neglect pursuant to C.C.P. section 473. Here you blew the time for this type of relief, since the order was issued 8 months ago. Had you filed a 473 motion at once, you probably could have succeeded on that basis.

Therefore Family Code section 3690(a) now governs your situation. Subsection (b) states: "(b) In all proceedings under this division, before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original order and that the moving party would materially benefit from the granting of the relief."

You must establish that there was an actual fraud, perjury, or lack of notice. Family Code section 3691. Your request for relief must be brought within six months of the date on which you discovered or reasonably should have discovered the ground(s) for relief. That clock began to run three months ago.

As a condition to granting relief (which may include a retroactive modification to what should have been ordered), the family court must find that your grounds for relief materially affected the outcome, i.e., that the support number would have been substantially lower and would not have been issued but for her fraud. The court cannot set aside a support order simply because it finds that it was inequitable when made, or because subsequent circumstances caused the support amount to be excessive, without more. Family Code section 3692. By the way, fraud is always the hardest thing to prove and should never be your first choice - argue lack of notice, and remember the harder ormeaner you attack her the more a court might unconsciously work to protect her.

The Court is restricted to setting aside only the parts of the support award that are materially affected by the circumstances leading to the court's decision to grant you relief, but the court can set aside the entire order based upon equitable considerations. Family Code section 3693.

Here you have the ground of never having been served. Your other ground would be her false statement that your earnings were $10,000/month, which should be easy to establish if this amount is far in excess of your historical earnings. You will want to clearly establish that fact, using tax returns or employer wage statements - never make this type of motion based upon your word or an Income and Expense Declaration alone.

This situation is more problematic for self-employed persons since often they claim personal expenses as business write-offs - even if that flies with the I.R.S. they may be added back as 'cash flow available for support' purposes. If after questionable expenses are added back your numbers and her's don't seem so far apart, your likelihood of success diminishes.

This is the procedure parties, including support recipients, who attended a contested hearing would use if they later discover the other party lied about their income. Be careful though, if your evidence isn't substantial then the Court will review your attempt to set aside the earlier order as a "disguised motion for reconsideration" and you will surely lose.

Finally, Family Code section 3652 provides that the court may award attorney fees in favor of the party who prevails in a set aside motion - which cuts both ways, of course. Pursuant to FC section 3654, either party is entitled to a statement of decision from the Court, upon request.

Good luck!

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