CAN YOU SET ASIDE A SUPPORT ORDER THAT WAS BASED ON A FRAUDULENT OR PERJURIOUS INCOME AND EXPENSE DECLARATION?

This blog addresses what can be done if one party deceived or defrauded the other party or the court or committed perjury and/or violated his/her fiduciary duty of disclosure to the other party by falsely claiming loss of a job, lack of income, or income below his/her actual income, resulting in an inadequte or excessive support order.

Two different avenues of relief are available, with different statutes of limitation, depending upon whether the support order was an order on an Order to Show Cause (either during the pendency of the action, or following Judgment in the action), or whether the support order was in the Judgment in the case.

Family Code Section 3690(a) provides that a court may, on any terms that may be just, relieve a party from a support order, or any part or parts thereof.

Family Code Section 3691 provides that the grounds and time limits for an action or motion to set aside a support order, 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, other than his/her own lack of care or attention, was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the fraud.

(b) Perjury: An action or motion based on perjury shall be brought within six months after the date on which the complaining party discovered or reasonably should have discovered the perjury.

Family Code Section 2102(c) provides that from the date of separation to the date of a valid, enforceable, and binding resolution of all issues relating to child or spousal support and professional fees, each party is subject to fidicuary standards governing confidential relationships with each other, including a duty of the highest good faith and fair dealing that neither shall take any unfair advantage of the other, as to all issues relating to the support and fees, including immediate, full, and accurate disclosure of all facts and information regarding the income or expenses of the party.

If the fraud or perjury was committed in an Income and Declaration upon which a Judgment of the Court was based (whether a Stipulated Judgment or a Judgment pursuant to the decision of a judicial officer) the Judgment, or at least the support provisions of the Judgment can be set aside and relitigated if a Motion to set aside is timely filed, providing evidence of the fraud or perjury, and demonstrating that it materially affected the support order and that the moving party would materially benefit from the granting of the relief, pursuant to Family Code Section 2121(b).

Family Code Section 2122 sets forth the Statutes of Limitation to set aside a Judgment (or support orders set forth in a Judgment), as follows:

(a) Actual fraud: within one year of the date when the complaining party discovered or should have discovered the fraud;

(b) Perjury: within one year after the complaining party discovered or should have discovered the perjury.

Once the fraud or perjury is discovered, the aggrieved party should diligently file a Motion to set aside the support order, the Judgment, or the support provisions of the Judgment, to seek a new support order based on the true income of the other party, and to seek monetary sanctions and attorney's fees for breach of the wrongdoer's fiduciary duty to disclose [See Marriage of FELDMAN (2007) 153 Cal.App.4th 1470] and/or for conduct which frustrated the policy of the law to promote settlement of litigation and reduce the cost of litigation through cooperation [See Family Code Section 271].

This blog was brought to you by DONALD F. CONVISER, a Los Angeles Certified Family Law Specialist, owner of Warner Center Law Offices, an aggressive and effective Los Angeles Divorce and Family Law Attorney serving clients in Los Angeles and Ventura Counties since 1972.