Divorce attorney got a judgment. Want to request to have it set aside

Asked 11 months ago - Paramount, CA

My divorce attorney got a judgment. I admit I made some mistakes in responding. I mistakenly thought I had to respond 20 days before the hearing but turns out I had to respond 30 days after receiving the suit.

In any case, I'm told I can request to have it set aside. Besides making my stupid mistake, I believe that the judgment was much more than I owe my attorney and believe I should have a chance to respond (he did offer to settle but than rescinded 2 days laster).

My question is what are the procedures? I was told I need to do two things 1) write a dec of why I think the judgment should be set aside and 2) supposedly a document called something to the affect "surprise"? What document is this?

Regarding #1, what should I include in the declaration?


Attorney answers (3)

  1. Gregory Paul Benton

    Contributor Level 20


    Lawyer agrees

    Answered . You need to do more than this. Why didn't y our attorney file the response in a timely fashion? You need to request that the court hear a motion to set aside the judgment under CCP 473. That requires the proper motion papers, a declaration stating the facts and a proper memorandum of points and authorities citing the proper statute and case law to support your request. You could also be required to pay the other side's attorney fees and costs to defend this motion. Even if granted, you will then be required to pay any court fees and costs to file your response. If you have waited a long time, then your task will be extremely difficult.

  2. Richard Forrest Gould-Saltman

    Contributor Level 20


    Lawyer agrees

    Answered . You don't indicate which court the judgment was entered in, but you may need to prepare a formal motion.

    MOST IMPORTANTLY: Before you go to the trouble of doing it, though, you should figure out WHY the judgment was more than what you "believed" was due. Did you have a written retainer agreement with the lawyer? Did you receive bills? Does the retainer agreement say that you'll owe interest if you don't pay on time? You won't be very happy if you spend the time, trouble and money to set the judgment aside, the court holds another trial, and the dollar amount of the judgment stays the same, or goes up. (Does the retainer agreement say that if you and the attorney go to court in a dispute about the fees, you'll have to pay his lawyer if you lose?)

  3. Wail Sarieh


    Contributor Level 18

    Answered . You need
    1. Form FL-300
    2. Memorandum of points and authorities under Code of Civil Procedure 473(b)- Also check out Family Code 2122 grounds to set aside)
    3. A detailed declaration to prove that the judgment was entered through surprise, inadvertence or excusable neglect.

    This response will not create an attorney-client relationship between you and Sarieh Law Offices, and is not... more

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Divorce is the process of formally ending a marriage. Divorces may be jointly agreed upon, resolved by negotiation, or decided in court.

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