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Can Uncontested Divorce Judgement be successfully appealed.

San Bernardino, CA |

My ex-wife & I had our uncontested divorce agreement, that was signed & notarized by both of us, approved & final judgement entered last month. She wanted to bow out because she was fed up with our 5 kids not listening to or respecting her because she has alot of anger management issues that manifested around & towards the kids. The terms were joint legal, full physical to me, no C/S, both sides waive right to spousal support, house to me. She's allowed to come over & see the kids, & take them out anytime she wants. Now that reality is setting in, she's talking about wanting to get the divorce agreement changed so she can get the house and money from me. Is it easy for her to appeal the divorce judgement to get it changed like that simply because she's regretting what she agreed to?

Additionally, she moved out of the house to live with her grandmother last month just after the agreement was signed by the judge. I did buy her a used car, and am continuing to pay all of her credit card payments, and am fronting her some extra money each month until she can get a good job with a steady income, but she's been threatening me lately with getting an attorney to change the agreement if I stop giving her money or don't let her see the children whenever she wants to.

Attorney Answers 7


  1. Best answer

    I generally agree with my colleagues. But to add some information:
    Technically speaking, she has the "right" to appeal the judgment to the State Court of Appeal, as long as she files the Notice of Appeal on time (within 60 days of the date the judgment was mailed to you by the clerk of the court).
    But that appeal will go nowhere because the judgment was stipulated, and if she went ahead with it you could seek an award of attorneys fees and other expenses against her for prosecuting a frivolous appeal.
    Her best bet would be to file in the family law court a motion to vacate the judgment (the "473" that my colleagues refer to). Those are pretty difficult to win, but if it is denied she would have the right to appeal from that order to the State Court of Appeal. But keep in mind that the act of appealing will change little to nothing about the effect of the judgment while the appeal is pending - and the appeal will be pending for at least one to two years.
    Finally, the child custody and support orders can always be modified - but your ex will have to prove a material change in circumstances (something more than "I changed my mind").
    Good luck to you.

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  2. It isn't easy and I don't see on what basis she could "appeal" a stipulated judgment. Her only avenue might be a motion under CCP 473 but I doubt if she could prove that she was negligent or signed it in error.


  3. On your facts, I see no basis for "appeal". A modification of a stipulated judgment is also dubious without changed circumstances.


  4. Your ex has a big hurdle to overcome. With the facts you have give I see no basis to have the Judgment changed. She signed the agreement therefore 473 would probably not help her.

    Note this answer does not constitute legal advice, and should not be relied on. Each situation is fact specific and court specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship


  5. It is my opinion that it would not be easy to set aside the judgment. I believe the court would be loathe to change a signed agreement that the judge ultimately signed. Your ex had an opportunity to challenge the signed agreement prior to the court signing the judgment. However, she might allege duress of some sort, and make up a creative and compelling reason for the court to consider, but I think it's a long-shot especially if it sounds like she's making stuff up.

    The issues relating to custody and child support can be raised again, because the children's best interest is the standard. However, the court should be hesitant to modify a custody agreement unless there is a change in circumstances. Even without a change in circumstances, the court could possibly modify a custody order if there are issues that need to be addressed. Each case is fact specific, and a consultation with a child custody attorney is a good idea.

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  6. I think your ex-wife has a steep uphill climb to get the judgment set aside or the agreement changed. As a general matter, assuming lack of fraud, duress or undue influence, California courts are very reluctant to allow parties to disregard or change agreements that they signed voluntarily. In addition, a court would likely find that your ex-wife had ample opportunity to object prior to entry of judgment. So, to answer your question, I don't think it will be easy for her to obtain relief under the facts presented.

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