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Vacate dissolution (divorce) judgment in California on grounds of duress

Vacating a dissolution (divorce) judgment in California on the grounds of duress pursuant to California Family Code section 2122(c) is the topic of this blog post. This motion may be filed within two years after the date of entry of judgment and can also be used to vacate a legal separation or nullity judgment in California as well.

This motion is particularly useful when a party has endured threats whether physical or mental, financial control and other similar situations and that duress was the major factor in inducing them to consent to the terms of a particular judgment.

The test used for determining duress is subjective and involves the unique circumstances of a particular case. Actual confinement of a person or their property is not required. In other words each case must be considered as unique, there is no general rule as to what facts are sufficient to show duress. The state of mind of the victim of the duress is much more important and relevant than the nature of the threats.

Family Code § 2121 states that, “(a) In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter. (b) In all proceedings under this chapter, before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.”

Family Code § 2122 states in pertinent part that, “The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following:

(c) Duress. An action or motion based upon duress shall be brought within two years after the date of entry of judgment.”

Note that the party requesting that the judgment be vacated must allege sufficient facts to show how the duress materially affected the outcome of the case, and that they would materially benefit if the judgment was vacated.

A California Court of Appeal has stated that duress need not involve any actual physical threats but may include any mental coercion that would tend to induce the assent of the coerced party. Other examples of duress could include financial control, using threats of denying access to minor children and similar situations.

Another Court of Appeal stated in the last footnote of In re Marriage of Kacik (2009) 179 CA4th 410, 427. FN 12:    “As for the two-year limit in cases of duress and mental incapacity, there is simply no analogy. Note that duress, in a family law context, often involves domestic violence, and it may take a victim of domestic violence a certain recovery time before the victim can fully appreciate that a given judgment was the product of domestic violence (even just threatened). So the Legislature would have been perfectly logical to build in considerable leniency as to time in such cases.”

Attorneys or parties in California who would like to view a portion of a 10 page sample motion to vacate a divorce judgment on the grounds of duress that includes a memorandum of points and authorities and sample declaration sold by the author 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 sample motion to vacate a judgment on the grounds of duress can use the link shown below.

California divorce litigation document package

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

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

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

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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