Set Aside Divorce Judgment Drafting When a Former Spouse Hid Assets, a Pension, or Property
To set aside a divorce judgment, you ask the family court that entered it to undo all or part of the judgment on a ground the law recognizes, such as actual fraud, perjury in the financial disclosures, a failure to disclose assets, duress, mental incapacity, or mistake, and you file within the deadline that ground carries. If an asset was simply never divided, a separate post-judgment motion can divide it without disturbing the rest of the judgment. We draft the request, the declaration, the points and authorities, the discovery, and the proposed order. You, or your counsel, review, sign, and file.
The short answer
In California, fraud, perjury, and nondisclosure must be raised within one year of discovery; duress and incapacity within two years of entry; mistake in a stipulated judgment within one year of entry (Family Code Section 2122). Section 2556 sets no deadline for dividing an omitted asset. Texas and Florida use different rules, compared below.
Fam. 2122 · 2556 · TRCP 329b · Rule 12.540
Set aside, divide the omitted asset, recover the hidden share
Which Ground Fits Your Case, and When Its Deadline Runs Out
California built a separate chapter for this problem. Family Code Sections 2120 to 2129 govern relief from a judgment dividing property or setting support once the six-month window of Code of Civil Procedure Section 473 has passed. Section 2120 explains why: property division and support awards depend on full disclosure, and a judgment built on nondisclosure or misconduct can be inequitable when made. Section 2122 then lists six grounds, each with its own deadline, and a request that pleads the wrong ground, or the right ground too late, is denied no matter how strong the facts are.
Two things about the clocks decide most cases. Fraud, perjury, and nondisclosure run from discovery, meaning the date you did discover the problem or should have, so the declaration has to prove that date and explain why you could not have found the account sooner. Duress, incapacity, and mistake run from entry of judgment, and no discovery rule rescues a late filing. Chapter 10 applies to judgments entered on or after January 1, 1993 (Section 2129).
| Ground | Source | What you must show | Deadline |
|---|---|---|---|
| Actual fraud | Fam. Code 2122(a) | You were kept in ignorance or otherwise fraudulently prevented from fully participating in the case. | 1 year after you discovered, or should have discovered, the fraud |
| Perjury | Fam. Code 2122(b) | False statements in the preliminary or final declaration of disclosure, the waiver of the final declaration, or the income and expense declaration. | 1 year after you discovered, or should have discovered, the perjury |
| Failure to disclose | Fam. Code 2122(f); 2107(d) | The disclosure requirements of Sections 2100 to 2113 were not met. Section 2107(d) says the failure is not harmless error. | 1 year after you discovered, or should have discovered, the failure |
| Duress | Fam. Code 2122(c) | Agreement or participation obtained through threats or coercion. | 2 years after entry of judgment |
| Mental incapacity | Fam. Code 2122(d) | A party lacked the mental capacity to take part in the case or agree to its terms. | 2 years after entry of judgment |
| Mistake | Fam. Code 2122(e) | Mutual or unilateral mistake of law or fact, only for stipulated or uncontested judgments, or the stipulated part of one. | 1 year after entry of judgment |
| Mistake, inadvertence, surprise, excusable neglect | CCP 473(b) | The general civil ground, available in family cases before the Chapter 10 grounds take over. | Reasonable time, no more than 6 months after the judgment |
| Void judgment | CCP 473(d) | A judgment the court had no power to enter, for example for lack of jurisdiction or proper service. | No fixed period in the statute |
Unfair is not a ground
Section 2123 bars setting aside a judgment simply because it was inequitable when made, or because later events made the division unequal or the support inadequate. Before granting relief, the court must also find that the facts materially affected the original outcome and that you would materially benefit from relief (Section 2121(b)). Our declarations are built to prove both findings, not just the misconduct.
Set Aside, Appeal, New Trial, or Divide the Omitted Asset: Picking the Right Filing
People often file the wrong paper first, and in family law the wrong paper can cost the right deadline. The four roads below answer different problems, and a single matter can need two of them at once.
Appeal: the judge got the law wrong
An appeal reviews the record that exists. In California a notice of appeal is generally due 60 days after the clerk or a party serves notice of entry of judgment, and never later than 180 days after entry, and California Rules of Court, rule 8.104(b) says no court may extend it. New evidence of a hidden account cannot be added on appeal. If your issue is legal error, see our appeal brief drafting for self-represented parties.
New trial: something went wrong at trial
A motion for new trial fits a case that was actually tried. In California the notice of intention is due within 15 days of service of notice of entry, or 180 days after entry, whichever is earliest (Code of Civil Procedure Section 659). In Texas the motion is due within 30 days after the judgment is signed (Rule 329b(a)). Most stipulated divorces were never tried, so this road rarely fits a settlement.
Set aside: the judgment rests on concealment or defect
The set-aside goes back to the trial court that entered the judgment and asks it to undo the affected provisions for fraud, perjury, nondisclosure, duress, incapacity, or mistake. It is the only road that lets the court hear evidence the other side kept out of the case. This is the core of what this page covers.
Omitted asset: the judgment never addressed it
Family Code Section 2556 gives the court continuing jurisdiction over community assets and debts the judgment did not adjudicate, and Section 2128(a) confirms the set-aside chapter does not displace it. The rest of the judgment stays intact. Texas reaches the same result with a post-decree suit under Family Code Section 9.201.
If your problem is not a defect in the original judgment but a change since then, such as a new job or a move, the tool is a motion to modify the decree, not a set-aside.
How to Vacate a Divorce Judgment Within Six Months, or When It Is Void
The fastest way to vacate a divorce judgment in California is the general civil rule. Code of Civil Procedure Section 473(b) lets the court relieve a party from a judgment taken through mistake, inadvertence, surprise, or excusable neglect, on an application made within a reasonable time and never more than six months after the judgment. The application must include a copy of the answer or other pleading proposed to be filed. For a default entered because of an attorney's mistake, the statute makes relief mandatory when the attorney's sworn affidavit of fault is filed within six months, unless the court finds the attorney's error did not cause it.
Family Code Section 2121(a) picks up where Section 473 stops: it allows relief after the six-month limit of Section 473 has run, on the Chapter 10 grounds only. So a matter discovered five months after judgment can often be pleaded under both, and we draft it that way.
A void judgment is different. Section 473(d) lets the court, on motion after notice, set aside any void judgment or order, and the statute sets no time limit. Void usually means the court lacked power to act, for example no valid service on a respondent who never appeared. For defaults void for lack of proper service, a version of Section 473 that becomes operative January 1, 2027, adds an express provision that the motion may be brought at any time after entry.
Where the default arose because service never gave you actual notice, Section 473.5 is another route, with its own limit of two years after entry of the default judgment or 180 days after written notice of it, whichever is earlier. For civil judgments outside family court, see our civil vacatur drafting service.
When You Can Set Aside a Marital Settlement Agreement You Signed
Most divorces end in an agreement, not a trial, which is why the question we hear most is whether you can set aside a marital settlement agreement after signing it. Signing does not waive the disclosure rules. Section 2105 requires each party to serve a final declaration of disclosure before or at the time the parties agree on property or support, and Section 2106 bars entry of judgment on property rights without it, subject to a valid mutual waiver and a few narrow exceptions.
That waiver is not a formality. Under Section 2105(d) it is signed under penalty of perjury and must represent that both parties exchanged preliminary disclosures, fully updated them, and understand that noncompliance will result in the court setting aside the judgment. A spouse who signed that waiver while holding an undisclosed account made a false sworn statement, and Section 2122(b) names perjury in the waiver as a ground.
For an agreed judgment, Section 2122(e) also allows relief for mistake, mutual or unilateral, of law or fact, within one year of entry. Duress and mental incapacity carry two years. Section 2124 adds that an attorney's negligence is not charged to the client unless the client knew or should have known of it and unreasonably failed to self-protect. If the agreement was never merged into or incorporated in the judgment, Section 2128(b) leaves ordinary contract remedies in place. To understand how these agreements are built in the first place, see our settlement agreement drafting page.
Perjured waiver
Waiver of final disclosure signed while an asset was withheld (Sections 2105(d), 2122(b)).
Mistake in the deal
Mutual or unilateral mistake in a stipulated judgment, one year from entry (Section 2122(e)).
Signed under pressure
Duress or incapacity at signing, two years from entry (Section 2122(c), (d)).
The Set-Aside Papers We Draft, From the Request to the Proposed Order
A set-aside is won on proof, so the package is built around the evidence rather than the form. We read the judgment, both sides' disclosures, and whatever revealed the hidden asset, pick the ground or grounds that fit and are still timely, and draft each paper to the rules of the state and county where the judgment was entered. Where the records are in the hands of a bank or plan administrator, the discovery comes first.
- 01
Request for Order or Motion to Set Aside
In California, the Request for Order (Judicial Council form FL-300) with an attachment that pleads each Family Code Section 2122 ground, the date you discovered the problem, and which provisions of the judgment should fall. In Texas, the motion for new trial or to modify within the plenary window, or a petition for bill of review after it. In Florida, the Rule 12.540 motion.
- 02
Supporting Declaration With Exhibit Index
Your sworn account of what was disclosed, what was not, when and how you found out, and why the concealed item changed the result. Each fact is tied to an exhibit: the disclosure schedule, the statement that contradicts it, the email that admits it.
- 03
Memorandum of Points and Authorities
The legal argument: the statutory ground, the deadline and why the motion is timely, the materiality finding the court must make under Section 2121(b), and the remedies requested under Sections 1101, 2107, 2125, 2126, and 2556.
- 04
Discovery and Subpoenas for Undisclosed Accounts
Requests for production and deposition subpoenas for business records aimed at the bank, brokerage, retirement plan administrator, or employer that holds the records the other side left out, drafted to the court's discovery rules and privacy limits.
- 05
Motion to Divide an Omitted Asset
When the judgment never mentioned the asset: a post-judgment motion under Family Code Section 2556 in California, or an original suit under Texas Family Code Section 9.201, asking the court to divide the pension, account, or property now.
- 06
Proposed Order, Reply, and Statement of Decision Request
The order the judge can sign, the reply to the other side's opposition, and a timely request for a statement of decision where the facts are contested (California Section 2127), which preserves the record if either side appeals.
Undoing a Divorce Decree in California, Texas, and Florida
Texas works on a short fuse. Under Rule of Civil Procedure 329b(d), the trial court has plenary power to grant a new trial or vacate, modify, correct, or reform the judgment for 30 days after it is signed, extended by a timely motion for new trial or to modify. After that, Rule 329b(f) says the judgment can be set aside only by bill of review. The bill of review is an equitable proceeding whose elements come from Texas case law rather than a statute; as generally stated, the petitioner must show a meritorious claim or defense that the other side's fraud or wrongful act, or an official mistake, kept them from presenting, without negligence of their own. Texas courts have generally applied the four-year residual limitations period of Civil Practice and Remedies Code Section 16.051. Courts there also distinguish extrinsic fraud from intrinsic fraud such as a false inventory, and that line can decide a hidden-asset case, so we confirm the current case law in your appellate district before drafting.
Texas also has a statutory path that avoids the bill of review entirely when the asset was never divided. Family Code Section 9.201 lets either former spouse sue to divide property not divided or awarded in the decree, in the court that granted the divorce, within two years after the other spouse unequivocally repudiates the claimant's ownership interest and communicates that repudiation (Section 9.202). Florida applies Civil Procedure Rule 1.540 to family cases through Family Law Rule 12.540, with one change that matters here: there is no time limit for a motion based on a fraudulent financial affidavit in a marital case.
| Issue | California | Texas | Florida |
|---|---|---|---|
| Main vehicle after judgment | Request for order or motion under Fam. Code 2120 to 2129; CCP 473(b) within six months | Motion for new trial or to modify within plenary power (TRCP 329b); afterwards, a bill of review | Motion under Fla. Fam. L. R. P. 12.540, which applies Fla. R. Civ. P. 1.540 to family cases |
| Fraud and hidden assets | Actual fraud, perjury, or nondisclosure: 1 year from discovery (2122(a), (b), (f)) | Bill of review, an equitable proceeding defined by case law; courts have generally applied the 4-year residual limit (CPRC 16.051) | Fraud or misconduct: 1 year after judgment; fraudulent financial affidavit in a marital case: no time limit (12.540(b)) |
| Mistake, duress, capacity | Mistake in stipulated judgment: 1 year from entry; duress or incapacity: 2 years from entry (2122(c) to (e)) | Within plenary power, new trial or vacatur (329b(d), (e)); afterwards, only by bill of review (329b(f)) | Mistake, inadvertence, surprise, excusable neglect: 1 year (12.540(b)(1)) |
| Void judgment | Court may set aside a void judgment on motion (CCP 473(d)) | Court may declare a judgment void because signed after plenary power expired (TRCP 329b(f)) | Reasonable time, no one-year cap (12.540(b)(4)) |
| Asset never divided | Post-judgment motion; court divides equally absent good cause (Fam. Code 2556) | Post-decree suit in the divorce court; 2 years from repudiation (Fam. Code 9.201, 9.202, 9.203) | No omitted-asset rule identified; relief runs through a 12.540 motion or an independent action, which the rule preserves along with fraud on the court |
| Extra remedies | 50 percent of an undisclosed asset plus fees, 100 percent where Civil Code 3294 applies (1101(g), (h)); sanctions (2107(c)) | Just and right division of the undivided property; fees, costs, and expenses (9.203, 9.205) | Relief on such terms as are just (12.540(b)) |
Found an account, a pension, or a property that was never disclosed?
Send the judgment, the state, and what you found and when. We return scope and a delivery date in one business day, with the deadline for each ground that still applies.
What the Court Can Order When It Sets the Judgment Aside
Setting aside a provision is the start, not the end. The request should tell the court exactly what to do next, because a vague prayer for relief invites a vague order. In California the court sets aside only what the problem touched, revalues and divides what it reopens, and can add a penalty share of the concealed asset and sanctions. When facts are contested, a timely request makes the court issue a statement of decision (Section 2127), which matters if either side appeals the ruling on the set-aside.
Two limits protect third parties and the rest of the judgment. Section 2128(e) leaves untouched the rights of a good faith lessee, purchaser, or lender for value of real property, so a house already sold to a stranger is usually reached through its proceeds, not its title. And Section 2128(d) leaves the ordinary rules for modifying or enforcing support orders in place, so support changes based on new circumstances belong in a modification request.
Only what the problem touched
The court sets aside only the provisions materially affected, with discretion to set aside the entire judgment when equity requires (Section 2125). Section 2105(c) allows the same limit for a disclosure failure.
Fresh valuation and equal division
For assets whose division is set aside, the valuation date is subject to equitable considerations, and the court divides equally unless good cause requires otherwise (Section 2126).
A penalty share of the hidden asset
Breach of the fiduciary duty supports an award of 50 percent of an undisclosed asset plus fees and costs, valued at its highest relevant value, and 100 percent where Civil Code Section 3294 applies (Section 1101(g), (h)).
Sanctions and fees
A party who fails to comply with the disclosure chapter faces money sanctions sufficient to deter, including reasonable attorney's fees and costs, unless the court finds substantial justification (Section 2107(c)).
What to Gather Before We Draft Your Set-Aside Request
You do not need everything to start, and you should not wait for everything if a deadline is close. Send what you have and we will tell you what is missing and which records the subpoenas can pull from the bank or plan. Upload through the secure matter portal, never as email attachments.
- 1The entered judgment, every attachment, and the marital settlement agreement if one was incorporated, with the date of entry and any notice of entry.
- 2Both sides' preliminary and final declarations of disclosure (in California, forms FL-140 and FL-142) or financial affidavits, and any waiver of the final declaration.
- 3Every income and expense declaration (FL-150) the other side filed or served.
- 4The document that revealed the hidden asset: a statement, a tax return, a loan application, a pension notice, a social media post, a deed.
- 5The date and circumstances of that discovery, and anything showing you could not reasonably have found it sooner.
- 6Retirement plan names, employer names, and account numbers you know of, even partial ones, so subpoenas can be aimed correctly.
- 7Emails and texts from the negotiation, especially any statement about what assets existed or any pressure to sign.
- 8Medical records or other proof if duress or mental incapacity is part of the claim.
- 9The case number, the court, and the name of the other side's attorney, if any.
- 10Any later orders, including a QDRO already entered on another plan.
We Draft the Set-Aside; You or Your Counsel Sign and File It
Legal Tank is a drafting service, not a law firm, and nothing on this page is legal advice. We serve self-represented former spouses who want filing-ready papers and family law attorneys who want the motion, declarations, and discovery built for their review. Either way, the person whose name is on the caption decides what to file and signs it.
Legal Tank
- Reads the judgment, the settlement, and both sides' disclosures.
- Matches the facts to each ground and computes each deadline.
- Drafts the request, declaration, points and authorities, and proposed order.
- Drafts discovery and subpoenas, and the reply to the opposition.
You or your counsel
- Decide the strategy and whether to file.
- Review and sign the request and declarations under penalty of perjury.
- File with the family court, pay the fee, and serve the other side.
- Appear at the hearing.
If the case turns into a document-heavy fight over account records, see our litigation support for counsel. For a memo on how your appellate district treats a particular set-aside question, see legal research memos.
Questions Former Spouses Ask Before Filing a Set-Aside
Can a divorce judgment be set aside?
How long do you have to set aside a divorce judgment in California?
What happens if my ex hid assets during the divorce?
Can you reopen a divorce settlement for a pension that was left out?
What is the difference between setting aside and appealing a divorce judgment?
Can I set aside a marital settlement agreement I signed?
Can I file a request to set aside a divorce judgment without a lawyer?
Get the Set-Aside Drafted Before the Discovery Year Ends
Send the judgment, the state and county, and what you found and when you found it, and we will scope the request to set aside the divorce judgment and every paper that goes with it. We return scope and a delivery date in one business day, and the draft comes back for you or your counsel to sign and file.
Quotes return same business day on intakes received before 5 PM ET
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