When Can a Divorce Settlement Be Set Aside as Invalid in California?

Recently, in an unusual case, according to news reports, a Los Angeles County Superior Court Judge ruled that a divorce settlement that had been signed between an actor and his second wife is not valid because the actor was coerced into signing it after his second ex-wife threatened to leak private details from his life to the news media, thereby jeopardizing his film career.  Although this is an unusual case, there are four reasons why a divorce settlement can be set aside.

 A divorce settlement, like other negotiated agreements, can be found to be invalid due to duress, fraud, mistake of fact or law, or undue influence. When a divorce settlement is found to be invalid in court, the financial terms of the divorce have to re-determined.

marital settlement induced by duress

In California, as found in In Re Marriage of Gonzalez (1976)  57 Cal. App. 3d 736, a contract can be found to be invalid due to duress if the contract was “obtained by so oppressing a person by threats regarding the safety or liberty of himself, or of his property, or of a member of his family, as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract. .”

marital settlement induced by fraud

The elements of fraud in California are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Lazar v. Superior Court (1996) 12
Cal.4th 631, 638.)   Family Law Section 2120 et seq. authorizes a dissolution judgment to be vacated where the judgment was procured by fraud or perjury.  In such cases, the interest in assuring finality of judgments is outweighed by other considerations."  (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1152.)

mistake of fact or law

Family Code Section 2122, subdivision (e), provides: “As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties,” a motion to set aside the judgment may be based on “mistake, either mutual or unilateral, whether mistake of law or mistake of fact.” “[T]he failure of a spouse to disclose the existence or the value of a community asset . . . constitutes a basis for setting aside a judgment on the grounds of mistake under section 2122.” (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 144, fn. omitted; accord, In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1345.)

marital settlement induced by undue influence

In re Marriage of Delaney (2003) 111 Cal.App.4th 991, 996, explains that “when any interspousal transaction advantages one spouse to the disadvantage of the other, the presumption arises that such transaction was the result of undue influence.” A mere benefit is not enough;   the advantage must operate “to the disadvantage” of the other spouse.

These are the grounds that are commonly used to set aside a divorce settlement.  Of course, if you are interested in setting aside a settlement agreement, you must take  action in a timely manner. This is a complicated area of law where an experienced Family Law attorney can help you .

copyright © 2016 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

We hope this information has been helpful to you. If you click on the link below, you will be directed to the Amazon website.  We have not received anything of value from the author or publisher for recommending the books listed below.  Should you purchase a book, we may receive a small commission that will not increase your purchase price.  Good luck.

Thank you. Comments are welcome.

In re Marriage of Siegel (2015): Due Process Violation for Lack of Proper Notice

Irwin J. Siegel (Irwin) and Linda S. Siegel (Linda), now in their early 80’s, divorced in 1987.  In 2013, Linda wanted to check to make certain that Irwin was complying with their marital termination agreement, which merged into a judgment, and required Irwin to establish a life insurance trust for Linda, subject to certain terms.  Linda filed a Request for Order to Disclose Insurance Information, asking for a court order requiring Irwin to provide "proof" that the insurance policy was in existence. Irwin filed a Responsive Declaration consenting to disclose information about his existing life insurance for Linda's benefit, attached some documents, but did not appear at the hearing.

At the hearing, the family court judge construed the Request for Order To Disclose Insurance Information as a motion to enforce the marital termination agreement and issued an order after the hearing which, among other things, required Irwin to establish a $126,916.00 trust with Linda as the beneficiary. Irwin appealed, asserting that he was denied due process because the trial court's orders exceeded the relief requested by Linda in the Request for Orders and he had inadequate notice of the relief and that the family court impermissibly modified a judgment that was nonmodifiable on its terms.

On appeal, Irwin argued that he was denied due process because the court held a hearing and made orders on issues about which he had no notice.  Irwin challenged the family court's authority to issue orders beyond the scope of the notice. This raised a question of law which the court reviews de novo. (Herbst v. Swan (2002) 102 Cal. App. 4^th 813, 816[citations omitted].

" 'It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend. (U.S. Const., [Amend.] XIV . . . .)' (In re Marriage of Lippel (1990) 51 Cal. 3d. 1160, 1166 [(Lippel)].) . . . [A] dissolution court cannot grant unrequested relief against a party who appears without affording that party notice and an opportunity to respond. [Citations.] Due process requires affording a litigant a reasonable opportunity, by continuance or otherwise, to respond to evidence or argument that is new, surprising, and relevant. [Citations.]" (In re Marriage of O'Connell (1992) 8 Cal.App. 4^th    565, 574.)

Here, the written Request for Orders sought "proof . . . that this [insurance] policy is or ever was in existence," and an order that the court "will insist on that proof." Irwin filed a response which indicated his written consent to this order. The transcript of the {Slip Opn. Page 10} brief hearing, is summarized above, speaks for itself. The Family Law court, on its own volition, chose to treat the Request for Orders as more than an Order to Disclose Insurance Information, and awarded relief far in excess of what was sought.

The Court of Appeal agreed with Irwin that the trial court erred by issuing an order that far exceeded the relief requested by Linda, and reversed.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed

Disclosure: If you click on the lin below, you will be directed to the Amazon website.  We may receive a small commission but this will not increase the amount you pay.  Check out the great deals today before they are gone.

How to Get An Estimate of the Amount of Child Support that Will Be Ordered

California has a calculator at its website that will estimate the amount of child support that can be ordered. Before going there, you should gather all of your financial information together. You will need to estimate the amount of time the children will spend with you as a percentage. For example, the estimate might be fifty percent. You will use your tax records, pay stubs, health insurance records, any business expenses if you are self-employed, as well as mortgage and property tax records, required union dues, retirement contributions, etc., to fill in the information on the forms. Once you have gathered all of your financial records together, plug the numbers from your records into the calculator that can be found here.

Go to Calculator


WARNING: This calculator provides an estimate of the amount of child support that a court will order to be paid. It is based on California Child Support Guidelines. But the Court Commissioner or Family Law Judge will have the final authority to determine the amount of a child support order. This estimate should not be construed as a guarantee of how much child support will be ordered in your particular case. There could be additional factors that are not being considered in your calculation that will impact the actual amount of child support ordered in your case.

If you have any questions about the child support guidelines, you should talk with your lawyer or contact a family law facilitator where your case has been filed.

Also, as many cusotdial parents have found out the hard way, a court order is not the same thing as a timely payment.  You may need to take the order to your local agency in charge of enforcing child support orders to receive payments.  These agencies can try to collect child suppor by garnishing wages, obtaining tax refund checks, withholding licenses, such as professional licenses and drivers licenses, etc.


copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

For more information, we recommend these books from NOLO press that have helped others understand the process of collecting child support.  Good luck.

A Will Can Be Reformed After Death Under the Right Circumstances.

No, this case does not address a vampire coming back to life after death and revising his will. Instead, the court addresses the question of who takes under a handwritten will when the will does not specify what happens if the spouse dies first. Here, the will only specified that if the couple died together, the property would go to charity and if the spouse lived, all but one dollar would go to her. The California Supreme Court finds that a will can be reformed after the testator’s death if  (1) a mistake is made and (2) clear, unambiguous evidence of the testator’s intent is found.

Irving Duke prepared a holographic will when he was in his 70's providing that, upon his death, his wife who was then in her 50's, would inherit his estate and that if he and his wife died at the same time, specific charities would inherit his estate. But his handwritten will did not contain a provision addressing the disposition of his estate if, as actually occurred, he lived longer than his wife. The specified charities contend that at the time the testator wrote his will, he specifically intended to provide in his will that the charities would inherit his estate in the event his wife was not alive when he died. But the lower courts excluded extrinsic evidence of the testator's intent, finding that the will was unambiguous and failed to provide for the circumstance in which his wife predeceased him. Therefore, the lower courts ruled that Duke died intestate, and entered a judgment in favor of the heirs who claimed their intestate share of the will.

The California Supreme Court granted review in Estate of Duke (2015) - Cal.4th _, Case. No. S199435. July 27, 2015, to reconsider the historical rule that extrinsic evidence is inadmissible to reform an unambiguous will. The Supreme Court ruled that the categorical bar on reformation of wills is not justified, and held that an unambiguous will may be reformed if clear and convincing evidence establishes that the will contains a mistake in the expression of the testator's intent at the time the will was drafted and also establishes the testator's actual specific intent at the time the will was drafted.

The Supreme Court further concluded that the charities' theory that the testator actually intended at the time he drafted his will to provide that his estate would pass to the charities in the event his wife was not alive to inherit the estate is sufficiently particularized, with respect to the existence of such a mistake and the testator's intent, that the remedy of reformation is available so long as clear and convincing evidence on both points is demonstrated. Therefore, the case was remanded to the probate court for consideration of whether clear and convincing evidence establishes that such a mistake occurred at the time the will was written by Irving Duke, whether Duke intended his estate to pass to the charities in the event his wife was not alive to inherit the estate when he died.

This case reminds everyone of the importance of making a will and addressing each possible contingency that can occur and what you want to happen in the event that it does or does not occur. Although the probate court will try to accommodate Duke’s wishes if they are found to be unambiguously clear, it is better to do this yourself so that the court can’t misinterpret what you want.  This will also help to avoid a litigation battle among potential beneficiaries of the will. If you made a will that leaves your estate to your spouse when you married, you probably need a new will after you divorce. Also, if one spouse dies, you likely need a new will.  Although you can draft a holographic will if you are reading this in California, this case demonstrates the danger that can occur if the will you draft is found to not be adequate to address all potential circumstances.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established with a retainer.

Free and Low-Cost Help With Family Law, Los Angeles County, California

Here are a few places that provide free and low-cost help with Family Law, Child Custody, Child Support, Guardianship and Domestic Violence restraining orders, and other related issues in Los Angeles County, California:

(1) Harriet Bahia Center for Family Law - Assists low income clients
      3250 Wilshire Blvd., Suite 710                                        
       Los Angeles, CA 90026
       (213) 388-7515             

(2) Levitt & Quinn -                              This group provides low-cost legal services
1557 Beverly Blvd.
Los Angeles, CA 90010
(213) 482-1800

(3) Los Angeles County Public Law Library -  free - Help to find forms/information/law 
      301 West First Street  
       Los Angeles, CA 90012 .
       (213) 785-7529


(4) The Facilitator Office at each courthouse  will help you find and prepare forms - free
                                                                                 

(a) 111 N. Hill Street, Room 426
Los Angeles, CA 90012
(213) 974-5004

(b) 300 East Walnut Street, Room 300
Pasadena, CA 90012
(626) 356-5030

(c) 6230 Sylmar Avenue, Room 350
Van Nuys, CA 91401
(818) 374-7108

(d) 275 Magnolia Ave. Room 3101
      Long Beach, CA 90802
       (562) 256-2319

(e) 200 West Compton Blvd., Room 200F
      Compton, CA 90220
       (310) 603-3218
　

(f) 900 Third Street, Room 1026
     San Fernando, CA 91340
      (818) 898-2606

(g) 600 South Commonwealth Avenue, Room 1602
      Los Angeles, CA 90005
      (213) 351-8114              



(5) Domestic Violence Clinics at the Courthouse
      Los Angeles Superior Court
      111 North Hill Street, Department 8
       Los Angeles, CA 90012

Help in preparing restraining orders from 9 a.m. - 11:30 a.m. and
1:30 p.m. to 3:30 p.m.
　

If you are aware of an organization that is supervised by attorneys and helps clients with Family Law matters at no cost or at a lower cost, please leave a comment with your organization’s contact information.
　

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed.

In re Marriage of Davis - One Partner Must Move Out of the Marital Home to Legally Separate In California

In re Marriage of Davis (2015) 61 Cal. 4th 846,  the California Supreme Court ruled that a couple must live in separate residences in order for earnings and any assets acquired by either party to be considered separate property. This ruling clarified the law with regard to what is the date of separation by establishing a bright-line rule that requires one person to move out of the marital home to legally separate in California.

The court explained that in a marital dissolution proceeding, a court determines the division of property between the spouses by first characterizing the parties‘ property as community property or separate property. (In re Marriage of Valli (2014) 58 Cal.4th 1396, 1399.) Family Code section 760 provides that all property acquired by the spouses during the marriage is community property [e]xcept as otherwise provided by statute. One such statute is Family Code section 771, subdivision (a) (section 771(a)), which provides that [t]he earnings and accumulations of a spouse . . . , while living separate and apart from the other spouse, are the separate property of the spouse. In this case, the court considered whether a couple may be living separate and apart, for purposes of section 771(a), when they live together in the same home and the court decided that the answer was "no." The California Supreme Court held that the statute requires the spouses to be living in separate residences in order for their earnings and accumulations to be found to be separate property.

copyright © 2016 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney- client relationship is only established when a written retainer has been signed. 

Disclosure; If you click on the Amazon link below, you will be directed to the Amazon website.  This short blog post may not contain all the information you would want to be able to successfully litigate a Family Law case.  The resources below have proven helpful to others.  Good luck. 

Where to Find Family Law Forms in California If You are Representing Yourself

Many of the forms that are used in Family Law cases can be found on the California Supreme Court's website.  Go to http://www.courts.ca.gov/forms.htm  . Use the first bar to select the category of form.  Scroll down to Family Law - Dissolution.  The first papers filed with the court when you are seeking a divorce are usually the Petition for Dissolution, and a Summons, and if you have minor children (children who are under age 18), a Declaration Under UCCJEA. Additionally, there are forms to request  a fee waiver if you qualify financially that would result in the court not charging you with filing fees. The court's website has instructions for filling in these papers and filing them at  your local County Court.  Most forms are fillable.  If you are filing the Petition for Dissolution, you will be the Petitioner. Your soon-to-be ex is called the Respondent. 

In addition to the forms on the Supreme Court website, many counties, including Los Angeles, require a cover sheet to be filled out for the first papers filed in the case.  This form is only on the website for the local county court, it is not on the state Supreme Court's website.  If you are in a county that requires a cover sheet, this will also need to be filled in correctly before the clerk will file your papers. 

If all of this is confusing, and I am certain that it must be because I am not a trained instructor, I very highly suggest that you go to a local county law library and ask a reference librarian for assistance in filling out the forms.  The main law libraries in California are here in Los Angeles, in San Diego and in Sacramento.  Here in Los Angeles, the public can use the computers and fill in the forms that are needed for the case. There is a nominal charge to print forms. The reference librarians cannot answer legal questions unless they are  licensed in California to practice law, but they can direct you to information, such as the practice guides that attorneys use to fill out the same forms.

Additionally, the Los Angeles County Public Library has a program called "Lawyers in the Library" where volunteer attorneys appear and answer questions.  I was told that there is always a Family Law attorney who appears on Lawyers in the Library day and the assistance provided there is free of charge.

Most courts have a Family Law Facilitator who helps people with procedural questions in Family Law cases. Go to the court website for your county and search to find out if your county has a Facilitator or someone who helps litigants in Family Law cases and plan to meet him or her before you file your papers with the court and ask questions about the procedure and what you need to do next.

Nolo Press has some good books on how to do your own divorce if you are in pro per (representing yourself) and cannot go to a law library.  These books can be found on Amazon and other book seller websites.  Keep in mind the author of most of these self-help books is a practicing attorney and may have a bias regarding how a person should proceed with a divorce if the person can afford an attorney.  For example, for those that can afford to hire an attorney, some lawyers believe that mediation is the best approach, whereas, other lawyers believe a Collaborative approach works best.  But, both of these approaches can cost a substantial amount of money.  If you are reading this, I am assuming that you cannot afford the retainer to hire a lawyer and for some reason the low-cost help available by Legal Aid or other organizations that provide free or low-cost services will not work for you. If you select a book, use a recent one because the law changes often.

But even if you cannot afford a lawyer for the entire case, it might be beneficial for you to use a lawyer for part of the case.  This is known as unbundled legal services.  For example, you might  hire  a lawyer to appear in court on a single motion or to prepare a pleading for you without appearing in court, or to review documents you have already prepared before you file them with the court.

I hope something here helps to direct you to the information you need for your case.  Good luck.

copyright © 2015 Christine Esser

The information contained here is for informational purposes only and is not legal advice or a substitute for legal counsel. Online readers should not act upon this information without seeking professional counsel. Information on this blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and Christine Esser. An attorney-client relationship is only established when a written retainer has been signed.

The books below are self-help books available at Amazon for Family Law Cases. These books are highly recommended and have helped many people prepare their own cases or make an informed decision to seek help from a lawyer when appropriate. Good luck.