Vacating a stipulation in a California divorce case is the topic of this blog post. To request that a stipulation in a California divorce case be vacated a request for order or motion must be filed under the provisions of Code of Civil Procedure section 473 and Family Code section 210. Note that a settlement can also be vacated as well as a stipulation. A motion to vacate a stipulation can also be filed in a California legal separation or a nullity case.
The grounds for vacating a stipulation in a California divorce case include mistake, inadvertence, excusable neglect, fraud, mistake of law or fact, where the facts stipulated have changed or there has been a change in the underlying that could not have been anticipated, or where special circumstances exist rendering it unjust to enforce the stipulation. Several decisions of the California Courts of Appeal have stated that the issue of fairness can also be considered in appropriate situations where a motion to vacate a stipulation has been filed.
Code of Civil Procedure Section 473 states in pertinent part: “The Court may, upon any terms as may be just, relieve a party, or his or her legal representative from a judgment, dismissal, order or other proceeding, taken against him or her through his or her mistake, inadvertance, surprise or excusable neglect.”
A motion to vacate a settlement or stipulation may be filed in a California divorce or other family law case pursuant to Family Code § 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”
Note that any motion to vacate a stipulation or settlement in divorce case in California should be made as soon as possible once a party discovers the mistake of fact or law, fraud, etc as the motion must be filed within a reasonable period of time in no case exceeding six months once the stipulation or settlement has been signed or entered. The more quickly the motion is filed the better as section 473 is applied liberally where there is a prompt request for relief and the opposing party will not suffer any prejudice if relief is granted.
The moving party should be sure to include enough detailed facts in their supporting declaration to support the motion as well as attaching any relevant exhibits.
Attorneys or parties in California who would like to view a portion of a 11 page sample motion to vacate a stipulation containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can see below.
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 255 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
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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.