Sometimes, couples sign a divorce agreement in an effort to end the process as quickly as possible. However, this can result in an arrangement that is not necessarily fair to both parties. For example, one spouse may end up with considerably less assets than the other! While this situation is not optimal for the disadvantaged spouse, the court typically will not allow a modification of a divorce agreement. That said, the court WILL rule in favor of a change to a previous judgment on property division under certain circumstances.

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…or continue reading the article below to learn more about modifying property division in a divorce agreement.

California Court Requirements for Property Division Modifications

California Code of Civil Procedure 473(b) outlines the legislation on modifying a previous judgment. Generally speaking, the court will only change a previously entered judgment with evidence of mistake, nondisclosure, or fraud. These qualifications are further defined by California Family Code Section 2122. Specifically, this law lists the circumstances under which the court will consider changing a family law order regarding property division. They include, and are limited to:

  • Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding.
  • Perjury
  • Duress
  • Mental incapacity
  • As to stipulated or uncontested judgments…, mistake, either mutual or unilateral, whether mistake of law or mistake of fact
  • Failure to comply with property disclosure requirements

Furthermore, Section 2121 also mentions that in order for the court to make changes to a divorce agreement on property division, the effect must be major. In other words, small inconsistencies or mistakes in a judgment will NOT be eligible for a change.

Statute of Limitations on Judgment Modifications

Unfortunately, if you discover you have been tricked, lied to, or otherwise forced into signing a substantially unfair divorce agreement, you have limited time to fix it. In fact, Family Code Section 2122 also outlines the statute of limitations for each of the qualifications listed above:

  • An action or motion based on fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud.
  • An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury.
  • An action or motion based upon duress shall be brought within two years after the date of entry of judgment.
  • An action or motion based on mental incapacity shall be brought within two years after the date of entry of judgment.
  • An action or motion based on mistake shall be brought within one year after the date of entry of judgment.
  • An action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply.

What Does This Mean for You?

Many of these circumstances provide parties one year after discovering a problem to present it to the court. However, some statute of limitations expire two years after the judgment entry! For example, after a divorce has been finalized for two years, a motion based on duress is no longer valid. It is difficult to bring an abusive or threatening ex-spouse to court to fight an unfair divorce agreement. However, it’s important to enlist the help of an attorney as soon as possible following your divorce if you have been forced into signing an unfair agreement. Otherwise, you may not be able to recollect your property in the future.

Filing a Motion to Set Aside an Order From an Unfair Divorce Agreement

If your circumstances align with one listed above, you may be eligible to file a request for the court to set aside a family law judgment. This request will require Form FL-300 Request for Order; however, you must complete this form in a very specific manner to ensure eligibility. You can find more information on the California Courts’ Self-Help website, or enlist the help of a legal document assistant to walk you through the process.

Additionally, it’s important to include applicable attachments and a Memorandum of Points and Authorities. While there is no official court form for the memorandum, it should ultimately outline how the law supports your case. Finally, describe your case with Form MC-030 Declaration. Use this form to explain in great detail your request and your reasoning behind it.

Get Help Changing the Property Division in Your Divorce Agreement

Requesting a judge set aside a family law judgment originally described in a divorce agreement is no easy task. In fact, it will most likely require representation by a lawyer. However, keep in mind that A People’s Choice is here to assist you in completing your legal documents for family law cases. We provide low-cost, flat-fee help completing and filing legal forms with the court. Plus, we have established an excellent reputation in the community. Contact A People’s Choice today to learn more about how we can help you!

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