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,
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.