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Vacating a California dissolution (divorce) judgment under Code of Civil Procedure section 473(d)

Vacating a California dissolution (divorce) judgment under Code of Civil Procedure section 473(d) on the grounds that there was no valid service of summons is the topic of this blog post. Also discussed is the alternative ground of vacating the judgment under Family Code section 2122(f) for failure to comply with the disclosure requirements set forth in the California Family Code.

Code of Civil Procedure section 473, subdivision (d) states that, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

The law in California is settled that a judgment is void if the court lacked jurisdiction over a party in cases where there was no valid service of summons.

If a judgment is void, there is no time limit mentioned for a party to file a motion to set aside the void judgment under subdivision (d) of section 473 as a California Court of Appeal has held in a recent case that section 473, subdivision (d) allows a trial court to set aside a void judgment without mentioning any time limit.

A default and judgment entered where there was no valid service of process violates due process as the other party was deprived of the opportunity to participate in any way prior to default and judgment being entered.

And as to the failure to comply with the disclosure requirements it should be stressed that the California Family Code requires that parties comply with certain disclosure requirements. A preliminary declaration of disclosure must be served in every case pursuant to Family Code § 2104.  The preliminary declaration of disclosure cannot be waived under any circumstances.

Failure of a party to comply with this disclosure requirement requires that the judgment be set aside.

A final declaration of disclosure is not required in a default judgment case pursuant to Family Code § 2110. In all other cases a final declaration of disclosure is required unless both parties mutually waive the final declaration of disclosure. See Family Code § 2105.

Family Code § 2107(d) states that, “If a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error.”

However there are time limitations on requesting that a judgment be vacated as Family Code § 2122(f) states that a Judgment may be set aside for, “Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100) 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.”

Attorneys or parties in California who would like to view a portion of a sample points and authorities in support of an order to show cause or notice of motion to vacate a divorce judgment under Code of Civil Procedure section 473(d) and Family Code section 2122(f)  can see below.

 

Attorneys or parties in California that would like more information on a California divorce litigation document package containing over 45 sample documents including a motion to vacate judgment under Code of Civil Procedure section 473(d) and Family Code section 2122(f) can use the link shown below.

California divorce litigation document package

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link:  http://freeweeklylegalnewsletter.gr8.com/

Copyright 2013 Stan Burman. All rights reserved.

<strong>DISCLAIMER:</strong>

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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