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Sample motion to vacate California divorce judgment for fraud and perjury
 

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Sample motion to vacate California divorce judgment for fraud and perjury

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This sample motion to vacate a dissolution (divorce) judgment in California on the grounds of fraud and perjury is filed pursuant to the provisions of California Family Code sections 2122(a) and (b). ...

This sample motion to vacate a dissolution (divorce) judgment in California on the grounds of fraud and perjury is filed pursuant to the provisions of California Family Code sections 2122(a) and (b). This sample can also be used to vacate a legal separation or nullity judgment in California as well. The sample on which this preview is based is 10 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and a sample declaration.

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Sample motion to vacate California divorce judgment for fraud and perjury Document Transcript

  • 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Any Attorney or Party Any Street Any Town, CA 55555 714-555-5555 Any Attorney or Party Superior Court of the State of California County of ___________ In re the marriage of: Petitioner: _________________________ and Respondent:____________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REQUEST FOR ORDER TO VACATE JUDGMENT ON THE GROUNDS OF FRAUD AND PERJURY DATE: TIME: DEPT: To subscribe to my FREE California weekly legal newsletter visit http://www.legaldocspro.net/newsletter.htm and enter your e-mail address. Be sure to remove this notice and all other notices before using this document. To view over 250 sample legal documents sold by LegalDocsPro visit: http://www.scribd.com/LegalDocsPro/documents - 1 - POINTS AND AUTHORITIES-REQUEST FOR ORDER TO VACATE JUDGMENT FOR FRAUD
  • 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. STATEMENT OF FACTS On or about ___________Petitioner, ____________ (“Petitioner”) filed a Petition for Dissolution of Marriage. On or about _______ Respondent, __________ (“Respondent”) filed a Response to the Petition. The Court entered a Judgment of Dissolution of Marriage on or about ___________. See the Judgment and Notice of Entry of Judgment on file with the Court. _________ contends that the Judgment entered on __________ should be vacated pursuant to Family Code § 2122(a)(b) on the grounds of fraud and perjury in that LIST HERE IN DETAIL THE FACTS THAT SUPPORT YOUR CLAIMS OF FRAUD AND PERJURY SUCH AS FALSE TESTIMONY OR PERJURY IN THE PRELIMINARY OR FINAL DECLARATION OF DISCLOSURE OR INCOME AND EXPENSE DECLARATION _________ only consented to said Judgment because they had no personal knowledge of the fraud and perjury committed by ________________. _______ contends that they did not discover the facts constituting the fraud and perjury until ___________ when LIST IN DETAIL THE CIRCUMSTANCES UNDER WHICH YOU DISCOVERED THE FRAUD AND/OR PERJURY AND WHY YOU COULD NOT HAVE DISCOVERED IT EARLIER. __________ further contends that they would materially benefit from the granting of the relief in that LIST HERE IN DETAIL HOW YOU WOULD MATERIALLY BENEFIT FROM THE FACT THAT THE JUDGMENT WAS VACATED. Be sure to provide some very specific facts as to your claims of duress and how the fraud and/or perjury materially affected you in - 2 - POINTS AND AUTHORITIES-REQUEST FOR ORDER TO VACATE JUDGMENT FOR FRAUD
  • 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consenting to or not actively contesting the original judgment. You need to state the facts that pertain to your particular situation. You need to show the reasons why the actions of the other party constituted fraud and/or perjury. II. LEGAL ARGUMENT A. THE COURT HAS THE POWER TO VACATE THE JUDGMENT ON THE GROUNDS OF DURESS PURSUANT TO FAMILY CODE § 2122(a) ON THE GROUNDS OF FRAUD AND FAMILY CODE § 2122(b) ON THE GROUNDS OF PERJURY Family Code § 2121 states that, “(a) In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter. (b) In all proceedings under this chapter, before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.” Family Code § 2122 states in pertinent part that, “The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following: (a) Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding. An action or motion based on - 3 - POINTS AND AUTHORITIES-REQUEST FOR ORDER TO VACATE JUDGMENT FOR FRAUD
  • 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud. (b) Perjury. An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury.” As shown by the declaration of _______ and exhibits attached thereto, they did not discover the facts constituting the fraud and perjury until _____________ when LIST HERE THE FACTS AS TO WHO YOU DISCOVERED THE FRAUD AND/OR PERJURY AND WHY YOU COULD NOT HAVE DISCOVERED IT EARLIER. This motion is timely in that ____________ did not discover the fraud and perjury until ________________, which is less than one year from the filing of this request. Thus this Court has the statutory authority to vacate the judgment on the grounds of fraud and perjury that materially affected the outcome of this case, further the granting of relief would clearly benefit the moving party. _________ contends that the Judgment entered on __________ should be vacated pursuant to Family Code § 2122(a)(b) on the grounds of fraud and perjury in that LIST HERE IN DETAIL THE FACTS THAT SUPPORT YOUR CLAIMS OF FRAUD AND PERJURY SUCH AS FALSE TESTIMONY OR PERJURY IN THE PRELIMINARY OR FINAL DECLARATION OF DISCLOSURE OR INCOME AND EXPENSE DECLARATION _________ only consented to said Judgment because they had no personal knowledge of the fraud and perjury committed by ________________. - 4 - POINTS AND AUTHORITIES-REQUEST FOR ORDER TO VACATE JUDGMENT FOR FRAUD
  • 5. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 __________ further contends that they would materially benefit from the granting of the relief in that LIST HERE IN DETAIL HOW YOU WOULD MATERIALLY BENEFIT FROM THE FACT THAT THE JUDGMENT WAS VACATED. Be sure to provide some very specific facts as to your claims of fraud and/or perjury how that materially affected you in consenting to or not actively contesting the original judgment. You need to state the facts that pertain to your particular situation. You need to show the reasons why the actions of the other party constituted fraud and/or perjury. B. THE COURTS IN CALIFORNIA HAVE STATED THAT THE ONE YEAR PERIOD UNDER FAMILY CODE § 2122(a)(b) BEGINS TO RUN ON THE DATE THE COMPLAINING PARTY DISCOVERED OR SHOULD HAVE DISCOVERED THE FACTS CONSTITUING THE FRAUD OR PERJURY, NOT THE DATE HE OR SHE BEGAN TO SUSPECT THE FRAUD OR PERURY A California Court of Appeal has stated that the Family Code § 2122(a) one-year period begins to run on the date the complaining party discovered or should have discovered the facts constituting the fraud, not the date he or she began to suspect the fraud. As with a set-aside claim for fraud , commencement of the Family Code § 2122(b) one-year period is triggered by discovery of the facts constituting the perjury. Rubenstein v. Rubenstein (2000) 81 CA4th 1131, 1149 (“Rubinstein”). The Rubenstein court acknowledged that Family Code section 2122 prescribes a one-year statute of limitations for a motion to vacate a dissolution judgment. (Rubenstein, at p. 1136.) In - 5 - POINTS AND AUTHORITIES-REQUEST FOR ORDER TO VACATE JUDGMENT FOR FRAUD
  • 6. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rubenstein, the appellant raised a claim that her former husband possessed ownership rights to the music of Jimi Hendrix and George Clinton. The matter came to trial six years later, and appellant's former husband testified under oath that he had no ownership interest in the record catalogs of Jimi Hendrix or his marketing company. (Id. at p. 1137.) Approximately five years later, the appellant filed a complaint again seeking to vacate the dissolution judgment. She attached to her complaint pleadings filed in a federal court action involving Jimi Hendrix's music, in which her former husband admitted proprietary rights in Hendrix's music. She claimed that she had only recently learned of these facts from the pleadings discovered in the federal litigation, and that she had brought the action with reasonable diligence. (Id. at p. 1139.) The Rubenstein court reversed a finding of summary judgment in favor of the appellant's former husband in part because the facts did not establish as a matter of law that the appellant previously knew or should have known the facts regarding her former husband's fraud and perjury. (Id. at p. 1148.) As the declaration of ___________ clearly establishes they did not discover the facts constituting the fraud and perjury until ______________. Any perjury in the underlying proceedings that materially affected the outcome is presumably a cognizable ground for relief. This includes perjured declarations of disclosure (see Family Code §§ 2104(a), 2105(a)—referring to the commission of perjury “by a party”) and a perjured Family Code § 2105(d) waiver of the final declaration of disclosure. With regard to a Family Code § 2105(d) mutual waiver of the final declaration of disclosure, note that the “perjury” can occur by signing the waiver without fully complying with the statutory fiduciary disclosure obligations ... because, by executing a § 2105(d) waiver, each party is representing under penalty of perjury that those obligations have been fulfilled. See Family Code § 2105(d)(5). - 6 - POINTS AND AUTHORITIES-REQUEST FOR ORDER TO VACATE JUDGMENT FOR FRAUD
  • 7. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 You need to state the facts that pertain to your particular situation. Do NOT just use the wording here unless it definitely applies to the situation. C. BECAUSE THE MOVING PARTY MEETS ALL OF THE STATUTORY REQUIREMENTS FOR VACATING THE JUDGMENT ON THE GROUNDS OF FRAUD AND PERJURY, THIS COURT SHOULD GRANT THEIR REQUEST _________ contends that the Judgment entered on __________ should be vacated pursuant to Family Code § 2122(a)(b) on the grounds of fraud and perjury in that LIST HERE IN DETAIL THE FACTS THAT SUPPORT YOUR CLAIMS OF FRAUD AND PERJURY SUCH AS FALSE TESTIMONY OR PERJURY IN THE PRELIMINARY OR FINAL DECLARATION OF DISCLOSURE OR INCOME AND EXPENSE DECLARATION _________ only consented to said Judgment because they had no personal knowledge of the fraud and perjury committed by ________________. __________ further contends that they would materially benefit from the granting of the relief in that LIST HERE IN DETAIL HOW YOU WOULD MATERIALLY BENEFIT FROM THE FACT THAT THE JUDGMENT WAS VACATED. Be sure to provide some very specific facts as to your claims of fraud and/or perjury how that materially affected you in consenting to or not actively contesting the original judgment. You need to state the facts that pertain to your particular situation. You need to show the - 7 - POINTS AND AUTHORITIES-REQUEST FOR ORDER TO VACATE JUDGMENT FOR FRAUD
  • 8. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reasons why the actions of the other party constituted fraud and/or perjury. You need to state the facts that pertain to your particular situation. Do NOT just use the wording here unless it definitely applies to the situation. III. CONCLUSION Based on the foregoing, Respondent requests that the Court vacate the Judgment entered on _____ on the grounds of fraud and perjury. Dated________________ _______________________________________________ Any Attorney or Party You need to state the facts that pertain to your particular situation. Do NOT just use the wording here unless it definitely applies to the situation. Note that you MUST serve your request personally on the other party. See Family Code section 215(a). - 8 - POINTS AND AUTHORITIES-REQUEST FOR ORDER TO VACATE JUDGMENT FOR FRAUD
  • 9. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION ________________ I, _______________declare as follows: 1. I am the __________ in the above-entitled action and am over the age of 18 years. I have personal knowledge of the facts set forth in this declaration, and if called upon to testify as a witness, could and would competently testify to the facts set forth in this declaration. 2. I make this declaration in support of my foregoing request for order to vacate the judgment entered on _______ on the grounds of fraud and perjury. 3. LIST HERE IN DETAIL THE FACTS THAT SUPPORT YOUR CLAIMS OF FRAUD AND PERJURY SUCH AS FALSE TESTIMONY OR PERJURY IN THE PRELIMINARY OR FINAL DECLARATION OF DISCLOSURE OR INCOME AND EXPENSE DECLARATION. 4. Had I known of the fraud and perjury committed by _________ I would never have consented to the judgment. 5. I did not discover the facts constituting the fraud and perjury until LIST HERE THE FACTS AS TO WHEN YOU DISCOVERED THE FRAUD AND/OR PERJURY AND WHY YOU COULD NOT HAVE DISCOVERED IT EARLIER. 6. The fraud and perjury committed by ________ has materially affected the outcome of this case in that LIST HERE THE DETAILS AS TO HOW THE FRAUD AND PERJURY CAUSED YOU TO CONSENT TO THE JUDGMENT. 7. I would materially benefit from having the Judgment vacated in that LIST HERE THE REASONS WHY YOU WOULD MATERIALLY BENEFIT IF THE JUDGMENT WAS VACATED. - 9 - POINTS AND AUTHORITIES-REQUEST FOR ORDER TO VACATE JUDGMENT FOR FRAUD
  • 10. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. IF ANY DOCUMENTS SUPPORT YOUR CLAIMS OF FRAUD AND PERJURY OR YOUR REQUEST ATTACH THEM AS EXHIBIT “1”, ETC. 9. I request that the Court vacate the Judgment entered on _________ on the grounds of fraud and perjury. You need to state the facts that pertain to your particular situation. Do NOT just use the wording here unless it definitely applies to the situation. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct and that this declaration is executed on this the ___ day of ____________, 20___ at ______, California. ___________________________________________ SIGNATURE OF MOVING PARTY - 10 - POINTS AND AUTHORITIES-REQUEST FOR ORDER TO VACATE JUDGMENT FOR FRAUD