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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 29798
Experience:  Attorney with experience in family law.
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I received a final judgement on my divorce last sept 1st, re

Customer Question

Hello, I received a final judgement on my divorce last sept 1st, re marry on Oct. then my ex wife files a motion to set aside judgement. When that motion is granted, does it make my second marriage null and void? Thank you
Submitted: 8 months ago.
Category: Family Law
Expert:  Lucy, Esq. replied 8 months ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today.

If the judge agrees to grant the motion (which isn't guarantee - plenty of these motions are denied), what would usually happen is that he would set aside the part of the judgment related to property distribution, alimony, child support and similar issues - without setting aside the fact of the divorce itself. Usually in this scenario, couples remain divorced while they rehash the other legal issues. It would help to mention in your response to her motion that the judgement should not be set aside because you legally remarried after the final divorce. The judge typically doesn't want to take action to involuntarily invalidate a marriage when neither spouse wants that to happen.

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Customer: replied 8 months ago.
We (me and my ex wife) already have a court date hearing regarding the said motion to set aside the judgement, can we still cancel that date if we agree on issues that needs to be addressed thru mediation?
Expert:  Lucy, Esq. replied 8 months ago.

Yes, you can. If the two of you submit a joint Notice of Withdrawal of Motion, along with a copy of the settlement agreement, and ask the judge to cancel the hearing. Usually, they'll do it. Whatever you agree will then become part of the judgment.

Expert:  Lucy, Esq. replied 8 months ago.

Do you have any other questions about this?

Customer: replied 8 months ago.
Thank you very much Atty. If we don't agree on say the division of properties, where do we go from there? Who determines who gets what?
Expert:  Lucy, Esq. replied 8 months ago.

If you can't agree, the judge decides. Under California law, all property acquired during the marriage by either spouse is community property and gets divided equally between you, unless you have a prenuptial agreement. Then that agreement would control. You're each entitled to keep any property you had going into the marriage, unless you added the other spouse's name. For things like a house purchased before the marriage that has a mortgage, then the non-owner spouse could be entitled to reimbursement for a portion of mortgage payments made during the marriage, or they could get half the equity increase from improvements done during the marriage. But the default rule is that everything is split 50/50.

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