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legalgems
legalgems, Lawyer
Category: Legal
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Experience:  Just Answer consultant at Self employed
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Received a divorce default judgement. We agreed prior that

Customer Question

Received a divorce default judgement . We agreed prior that it would be simple and painless and that all assets would be equally divided . When I received the judgement I noticed a huge error, the home was valued at 100k less than actual sold compararables in the neighborhood. I want to appeal or set aside judgement and have the court review actual assets. What are my options going forward?
Submitted: 2 months ago.
Category: Legal
Expert:  legalgems replied 2 months ago.

Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

Customer: replied 2 months ago.
The judgement was stamped on Aug 16. Also received letter from former spouse's attorney asking me to sign over deed to house in days.
Expert:  legalgems replied 2 months ago.

Thank you; so there is a specific code provision for this, which I will include below. It is Civil Code of Procedure 473. Basically it allows a party to make a motion to the court to set aside a judgment; the motion is based on mistake, neglect, inadvertence or surprise. While the court prefers finality of judgments, they will allow a judgment to be vacated if there is the requisite ground (ie surprise, mistake etc), especially if there is a default judgment-the reason being that the party has not had their "day in court" so to speak.

Time is of the essence in vacating a judgment and usually 6 months from the date of judgment is the maximum time frame allowed for the deadline for filing and serving, but many courts will require that it be done within 30 days. Most attorneys will prepare a memorandum of points and authorities in support of the motion, to help increase the likelihood the judge will grant the motion; then the parties will need to litigate the issues at hand.

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Further questions? Please post here to continue the chat. Satisfied? Kindly rate positively so I receive credit for assisting you. I hope that you feel I have earned5 stars *****as I strive to provide my customers with great service.(no additional charges are incurred). Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.-----473. (a) (1) The court may, in furtherance of justice, and on any
terms as may be proper, allow a party to amend any pleading or
proceeding by adding or striking out the name of any party, or by
correcting a mistake in the name of a party, or a mistake in any
other respect; and may, upon like terms, enlarge the time for answer
or demurrer. The court may likewise, in its discretion, after notice
to the adverse party, allow, upon any terms as may be just, an
amendment to any pleading or proceeding in other particulars; and may
upon like terms allow an answer to be made after the time limited by
this code.
(2) When it appears to the satisfaction of the court that the
amendment renders it necessary, the court may postpone the trial, and
may, when the postponement will by the amendment be rendered
necessary, require, as a condition to the amendment, the payment to
the adverse party of any costs as may be just.
(b) 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.
(c) (1) Whenever the court grants relief from a default, default
judgment, or dismissal based on any of the provisions of this
section, the court may do any of the following:
(A) Impose a penalty of no greater than one thousand dollars
($1,000) upon an offending attorney or party.
(B) Direct that an offending attorney pay an amount no greater
than one thousand dollars ($1,000) to the State Bar Client Security
Fund.
(C) Grant other relief as is appropriate.
(2) However, where the court grants relief from a default or
default judgment pursuant to this section based upon the affidavit of
the defaulting party's attorney attesting to the attorney's mistake,
inadvertence, surprise, or neglect, the relief shall not be made
conditional upon the attorney's payment of compensatory legal fees or
costs or monetary penalties imposed by the court or upon compliance
with other sanctions ordered by the court.
(d) The court may, upon motion of the injured party, or its own
motion, correct clerical mistakes in its judgment or orders as
entered, so as to conform to the judgment or order directed, and may,
on motion of either party after notice to the other party, set aside
any void judgment or order.
Expert:  legalgems replied 2 months ago.

Hi- just checking in to see if you needed clarification on any of the above information. If so please post here (there is no additional charge for this) and I will do my best to get you the requested information.

Thank you!

Expert:  legalgems replied 2 months ago.

Here is the relevant code -hope that helps!
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=469-475

Thank you for using JA!