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Roger
Roger, Attorney
Category: Family Law
Satisfied Customers: 26331
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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My ex wife was awarded a percentage of of military retirement

Resolved Question:

My ex wife was awarded a percentage of of military retirement base on a false claim that she was married to me during 10 years of my active military service. when in fact I hadnt even been in he military or married to her for 10 years at the time of our divorce. but the judge signed off on it anyway.... at the time i did not have the money to try to take it back to court....its been 10 years since our divorce. is there anything I can do about getting that changed before I actually retire?
Submitted: 1 year ago.
Category: Family Law
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX I'm a Family Law litigation attorney. Thanks for your question.

Unfortunately, under California law, you only have 6 months to challenge or appeal a judgment. Thus, unfortunately, it has been too long for you to be able to appeal this matter since it's been longer than 6 months since the judgment/decree was entered.

Here's the rule:

California Code of Civil Procedure 473(b) says:

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, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after
service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is
accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the
court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.

Link: http://leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=469-475
Customer: replied 1 year ago.

Is there any type of action I can take against her personally? like sue her for fraud once she starts collecting the money. Surely there is something that can be done to prevent this type of fraud.

Expert:  Roger replied 1 year ago.
There are rules and laws that allow a person to sue for fraud, but the right to employ these rules/laws are limited by statutes of limitation, and if you don't take action during that period of time, you lose your right to take action.

Under California Civ. Proc. Rule §338(d), the statute of limitations to sue for fraud is 3 years. Thus, since this occurred 10 years ago, you should be out of time to take action against her.
Customer: replied 1 year ago.

wouldn't my 3 years start from the time she starts collecting money? Seems like it would be hard to sue someone until they actually start to benefit from the fraud.

Expert:  Roger replied 1 year ago.
Unfortunately, the statute of limitations would run from the time that she perpetuated the fraud - - which should be when she lied to the court in her testimony during the divorce.

Roger, Attorney
Category: Family Law
Satisfied Customers: 26331
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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