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Getting a set aside of Marital Settlement Agreement

Chula Vista, CA |

Under what conditions will a judge agree to a set aside of a marital settlement agreement that I signed less than a year ago? The judgement for the MSA has gone through, but I feel as though my lawyer did not do a very good job in getting me the best outcome for spousal support. I was married for 11 years. My ex was a physician and I was a stay at home mother and wife. He had a high income and I had none. I have been looking for a job (any job- I am willing to do ANYTHING) but no one is hiring me due to lack of work experience and professional skills. I have spousal support and child support for 10 years, but I want to go back to court and ask the judge if I can have a set aside to my MSA so I can get a more aggressive lawyer or even go to court and ask the judge to make a fair judgement.

Attorney Answers 4


You will need to show that you signed under duress or there was fraud involved or that your attorney attorney was negligent or that an error/mistake was committed. You have up to 6 months to file a motion under CCP 473. After that you will need to show deep prejudice to you based on the above. I suggest that you need to seek legal assistance on this. You really haven't presented any facts that would cause a court to set it aside. Unless you can prove that your attorney committed malpractice or was negligent, you will have a tough row to hoe.

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"I wanted a more aggressive lawyer" isn't enough of a basis to get a judgment set aide, by itself. The court will assume that you're a competent adult, and that you picked your own lawyer, and then you agreed to a settlement. If you had adequate information, and nobody coerced you improperly, the court will not usually simply let you "un-make" a deal you made.

You may want to review the facts and agreement, and the facts, with another attorney, to see if there's any other basis for a set-aside.

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I agree with counsel and recommend contacting an experienced divorce attorney to determine if there are any facts that might support setting aside the agreement. Good luck.

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The court is not likely to support "buyer's remorse." If you signed the MSA, with counsel, getting "the best outcome" is not likely a good enough reason to set aside the MSA, even if you were within the 6 month period to do so. You've also indicated you will receive support for 10 years; that's a long time. There's no guarantee that spousal support would have continued even if there was no termination date because you would have been likely given a "Gavron warning" to become self-supporting within a reasonable time.

Best of luck,

-Sanjay A. Paul

This is not legal advice. No attorney client relationship exists between us.

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