Can I Set Aside (Cancel) an Order in California Family Law Courts?

It is an all too common situation for a father to either to end up with an order, either agreed upon or ordered by the court that they soon realize is not in their or their children's best interest. If this is the case, California Family Code and the California Code of Civil Procedure both give parties the opportunity to rectify the situation in specific situations.


Once a final judgment is obtained in California Family Law Courts, parties only have few options to seek an alternate resolution. Depending on the circumstances, a party may either file a motion to set aside the judgment or for a post-judgment modification.


A post-judgment modification will only be successful if the requesting party can show a material change of circumstance. Family courts in California enforce a statewide policy that favors the finality of judgments. Therefore, a judgment will only be set aside under specific circumstances.


Under California Code of Civil Procedure, a party has the ability to have an order or judgment set aside. California Code of Civil Procedure section 473 states, “the court may, upon any terms as may be just, relieve a party…from a judgment.” An application to set aside a judgment under CCP 473 must be made within a “reasonable time” and in no case may exceed six months. The California Family Code extends this civil statute of limitations.


Also, California Family Code section 2122 states, “the grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section.” The following is a list of grounds to base a claim for a motion to set aside on:

(1) actual fraud;

(2) perjury;

(3) duress

(4) mental incapacity; and

(5) failure to comply with the disclosure requirements.


The time limits to bring these actions to set aside a judgment vary from one to two years depending on the basis of the set aside motion.


With respect to a stipulated or uncontested judgment, a party may move to set it aside on the basis of mistake, either mutual or unilateral, whether the mistake is of law or fact. Similar to a post-judgment modification, the court is unwilling to grant a motion to set aside unless the criteria set forth above is met.


Additionally, a judgment may not be set aside because simply because the court finds it inequitable when made, nor because subsequent events or circumstances have caused the division of assets or liabilities to become inequitable. The court does have flexibility to set aside only those portions of a judgment that are materially affected by the circumstances leading the court to grant relief.


If you find yourself in need of an attorney to deal with a bad order in a Southern California Family Law Court, put "The Fathers Rights Attorney" on your side by calling 951-223-1058 or scheduling your free, no obligation consultation here.