Legal reasons a judge can set aside an order or judgment

This is called a mistake, inadvertence, surprise, or excusable neglect

This means a court order or judgment was made against you because you

• Misunderstood the facts or the law and your misunderstanding was reasonable and justifiable (more than just not knowing the law)
• Were unexpectedly surprised or failed to act in time because you relied on someone else doing something
• Had the wrong information or you were unable to understand what to do

For these situations, the fact that you do not have a lawyer is not an excuse for making a mistake. The law doesn’t say exactly what is a valid reason but you can read the law in Code of Civil Procedure, section 473(b).

You must file and serve your request as soon as you can, but no later than 6 months from the date the order was made

If you find out about the order before the 6-month deadline, you should file the request sooner. 

What  to include in your set aside request

• Write that you are asking for a set aside under Code of Civil Procedure, section 473(b) in your reason.  

• Explain why the law applies to your specific situation. 

Include a proposed response. This is the response you would have filed if you had acted in time before the order was made against you. It will depend on what type of order or judgment you are asking to set aside. 

This means that you did not actually receive or see a copy of the Summons and Petition

The reason you didn't see them cannot be because you purposely ignored them or ran away or hid from someone you knew was trying to give you court papers. The law discussing this is Code of Civil Procedure section 473.5. 

Deadlines to file and serve the request for order

Your deadline depends on whether the court clerk mailed you a Notice of Entry of Default.

Those are the latest you can file and serve your request. But, you shouldn't wait until the last day possible if you find out about the default earlier. The law says you must file your request within a reasonable time. Reasonable usually means as soon as possible once you find out about the default judgment.

What  to include in your set aside request

• Write that you are asking for a set aside under Code of Civil Procedure, section 473.5 

• Explain why the law applies to your specific situation

Include a proposed response. This is the response you would have filed if you had acted in time before the order or judgment was made against you.

These legal reasons to set aside a judgment in divorce, legal separation, or annulment cases are based on Family Code section 2120 and 2122.

• Actual fraud

  You were kept from having information or from participating in the case through fraud. You must file the request for order to set aside within a year after you found out about or should have found out about the fraud.

• Perjury

  Your ex-spouse committed perjury (lied on purpose) in the preliminary, final, or waiver of financial declarations of disclosure or income and expense statements. You must file the request for order to set aside within 1 year after you found out about or found out about the perjury.

• Duress

  You were kept from participating because of duress (for example, threats of violence or harsh treatment meant to make you do something you don’t want to do).  You must file the request for order to set aside within 2 years after the entry of judgment.

• Mental incapacity

  You couldn't participate because of your mental incapacity. The request for order to set aside must be brought within 2 years after the entry of judgment

• Failure to comply with the requirements of financial disclosure

  You found out your ex-spouse did not comply with the disclosure requirements. You must file the request for order to set aside within 1 year after you found out about or should have found out about their failure to comply with the financial disclosures.

• Mistakes in judgments by agreement (stipulated) or uncontested

  When you or your ex-spouse made a mistake in the judgment papers or agreement. You must file the request for order to set aside within 1 year after the entry of judgment. 

What  to include in your set aside request

• Write that you are asking for a set aside under Family Code section 2120 or 2122

• Explain why the law applies to your specific situation

Include a proposed response. This is the response you would have filed if you had acted in time before the order or judgment was made against you.

If you're a service member and your service impacted your ability to participate in your case, you can ask the judge to set aside your default judgment.

This reason can only work if

• A default judgment was entered against you while you were on active duty or within 60 days of your service ending 
• Your service impacted your ability to participate in your case
• You have a legal defense to your case 

Deadline to file your request

You must file your request within 90 days of your service ending.

What to include in your set aside request

• Write that you are asking for a set aside under the Servicemembers Civil Relief Act (SCRA) 

• Explain why the law applies to your situation

Include a proposed response. This is the response you would have filed if you had acted in time before the court entered the judgment.

There are other legal reasons you could use.

1. Equitable reasons

For example, you can ask to set aside an order or judgment based on something called equitable relief. Equitable relief means you are asking a judge to make an order based on the court's power to ensure it is fair and that everyone has a fair chance to participate. These other reasons are often difficult and apply in limited situations.

Talk to a lawyer for more information or ask your court’s Self-Help Center to find out if they can help you.

2. Reasons specific to parentage cases (establishing a legal parent-child relationship)

When a judge has already determined that someone is the legal parent of a child, it is often too late to dispute parentage. Trying to have a parentage judgment set aside or canceled can be very difficult especially as more time passes. If you find out that there is a judgment of parentage or a judgment for child support against you, contact a lawyer or your court’s Self-Help Center right away. 

If the spousal or child support order is based on your ex-spouse's or the other parent's fraud or perjury, you can ask the judge to set aside the order. 

• Fraud

  You were kept from having information or from participating in the case through fraud.

• Perjury

  Your ex-spouse or child's other parent lied under oath. 

Deadlines to file and serve your request

You must file the request for order to set aside within 6 months after you found out about or should have found out about the fraud.

What to include in your set aside request

• Write that you are asking for a set aside under Family Code sections 3691(a) or (b)

• Explain why the law applies to your specific situation

• You must show that had the judge considered your response or financial information that the order would have been different

Include a proposed response. This is the response you would have filed if you had acted in time before the order or judgment was made against you.

If you did not find out about (get notice of) the order, you can ask the judge to set aside the order. This reason does not work if you were properly served or you avoided being served on purpose.

Deadlines to file and serve your request

You must file the request for order to set aside within 6 months after you found out about or should have found out about the support order.

What to include in your set aside request

• Write that you are asking for a set aside under Family Code sections 3691(c)

• Explain why the law applies to your specific situation

• Explain that you did not purposely ignore the court papers, or run away or hide from someone you knew was trying to give you court papers. 

• You must show that had the judge considered your response or financial information that the order would have been different

Include a proposed response. This is the response you would have filed if you had acted in time before the order or judgment was made against you.

This means there is an LCSA default child support judgment where the amount of child support is based on your presumed income and not your real income. 

To find out if the amount is based on presumed income, look at your copy of the Judgment Regarding Financial Obligations (form FL-630). If item 3 is checked, it means the support amount is based on presumed income.

Find out more about why and how you can have child support re-calculated in this situation.