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#361150 - 03/07/08 04:47 AM Re: I agree [Re: starstrucklver]
starstrucklver Offline
recently joined

Registered: 03/04/08
Posts: 9
she has also gotten a raise since the support was ordered. his pay will go down when they take away his bah after tehy make him move back into the barracks because he is single.

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#361151 - 03/07/08 04:48 AM Re: I agree [Re: starstrucklver]
Cinder2 Offline
Carpal \'Tunnel

Registered: 06/02/05
Posts: 4361
Loc: Southern California
You're missing our point here. The agreement is signed and none of that other stuff is relevant to the court. "Under duress" means you had a gun at your head or something, by the way. It doesn't mean "I was in Okinawa and I didn't know what to do so I signed it."

The facts are that the divorce was only final a few short months ago and he signed that the support is to continue for five years with no mention of remarriage or cohabitation. He can't go back now and say he didn't know better. That's not how it works.

Cinder

p.s. Not to sound toooooo judgemental, but why is he engaged to you already?

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#361152 - 03/07/08 07:51 AM Technically [Re: starstrucklver]
Melody Offline
Carpal \'Tunnel

Registered: 06/03/04
Posts: 10102
Loc: California
I am not sure that it would meet the legal definition of duress. She bluffed and he caved...happens all the time...duress needs to have some threat and some level of coersion. It would also require some ability to prove it happened. Most likely it would be a "he said/she said" argument, and the burden of proof would fall on your fiance.

The support may have been punitive by design when the agreement was drafted, but again...he signed it...so it doesn't matter.

As for the household, people can share an address, but not be a legal part of the household.

Ok...well, I still don't think he has much of a case, but I guess if you don't mind spending $10K or so up front to possibly save $40K down the road (you realize this could take months and months while the payments still go to her), then best of luck to you. He's going to need an attorney....a good one....and if he loses, he will likely have to pay HER attorney's fees as well. Can he afford to shell out $20K and then still have to pay the $50K in support over the 5 years?

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#361153 - 03/07/08 07:54 AM Spousal support [Re: starstrucklver]
Melody Offline
Carpal \'Tunnel

Registered: 06/03/04
Posts: 10102
Loc: California
is not subject to modification and review the way child support is. Just because someone got a raise a month or two after the orders were finalized does not mean the support would be lowered. It would have to have been some phenomenal raise for that to happen....and again...it's not likely because HE AGREED to the terms.

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#361154 - 03/07/08 07:32 PM Re: set aside???--please help!!! [Re: starstrucklver]
TGSM Offline
Carpal \'Tunnel

Registered: 02/07/05
Posts: 5856
I don't know if this helps you or applies to your situation, but for your reading pleasure...you may want to read up on California Family Code at

http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=fam&amp;codebody=set+aside+judgement&amp;hits=20

Some sections that stand out to me...

3691. 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 or 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.
(c) Lack of Notice.
(1) When service of a summons has not resulted in notice to a
party in time to defend the action for support and a default or
default judgment has been entered against him or her in the action,
he or she may serve and file a notice of motion to set aside the
default and for leave to defend the action. The notice of motion
shall be served and filed within a reasonable time, but in no event
later than six months after the party obtains or reasonably should
have obtained notice (A) of the support order, or (B) that the party'
s income and assets are subject to attachment pursuant to the order.

(2) A notice of motion to set aside a support order pursuant to
this subdivision shall be accompanied by an affidavit showing, under
oath, that the party's lack of notice in time to defend the action
was not caused by his or her avoidance of service or inexcusable
neglect. The party shall serve and file with the notice a copy of
the answer, motion, or other pleading proposed to be filed in the
action.
(3) The court may not set aside or otherwise relieve a party from
a support order pursuant to this subdivision if service of the
summons was accomplished in accordance with existing requirements of
law regarding service of process.



3692. Notwithstanding any other provision of this article, or any
other law, a support order may not be set aside simply because the
court finds that it was inequitable when made, nor simply because
subsequent circumstances caused the support ordered to become
excessive or inadequate.



3693. When ruling on an action or motion to set aside a support
order, the court shall set aside only those provisions materially
affected by the circumstances leading to the court's decision to
grant relief. However, the court has discretion to set aside the
entire order, if necessary, for equitable considerations.





Also here are some sections of California Code of Civil Procedure Section 473 that may or may not apply.

(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.
_________________________
Faith-a f*rm belief in something for which there is no proof...complete trust.~Merriam Webster

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#361155 - 03/07/08 11:40 PM Re: set aside???--please help!!! [Re: TGSM]
starstrucklver Offline
recently joined

Registered: 03/04/08
Posts: 9
well, if it can't be set aside, then it can be modified. losing bah is a significant drop in income and he can use that change in circumstances to amend the amount and length of support. the attorney is more confident of this, but will help us make a case for fraud first. one motion does not preclude the other. a significant change in income is a valid reason for modifying a support order. since hers went up and his went down, this meets the criteria.
with his income being within a few hundres dollars of hers, our attorney said that the judge is very unlikely to grant any potential request for him to pay fees. this is not automatic. that's another lie that she told him.
and cinder, you do sound judgmental, but that's ok because you don't know me. he is engaged to me "so soon" (although you have no idea how long i've known him or been with him) because i agreed to marry him on the condition of a long (greater than a year and most likely greater than 4 years while i finish grad school) engagement. had he not been willing to wait, i would have said 'no'. neither one of us is in a hurry to get married, but we have a commitment to each other that is more than just "boyfriend and girlfriend". like he told me when i asked him why he wanted to marry me "when you find a good thing, you shouldn't pass it up"

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#361156 - 03/08/08 08:38 PM Wait...I just want to make sure I understand [Re: starstrucklver]
Melody Offline
Carpal \'Tunnel

Registered: 06/03/04
Posts: 10102
Loc: California
I have no military background so I don't know all of the entitlements, etc. BAH is something regarding housing right? It is an allowance that is paid in order to pay rent for living off base? So since he is no longer married, he would not qualify and would move back onto the base and live for free?

I'm just speculating here, but I fail to see how the loss of BAH would affect his spousal support obligation. I mean, the housing allowance received is probably canceled out by the housing expense. So, if he moves back on base, yes, technically his income goes down because he would not receive the housing allowance; however, he would also have no corresponding housing expense....wouldn't it be a wash? I don't know if the courts would look at it that way, but an argument could be made to the effect that his net disposable income would not change. He could certainly try to get a reduction based on lower income though, but I would expect a smart attorney to use this argument to counter it.

Also, I'm confused about the fraud. What fraud would you be trying to show?

As for the fees...it's not based on incomes...but it's based upon who brought the action against the other party and was the action reasonable and did the instigator prevail (win). People could earn the exact same income, but if they are involved in litigation they could still be awarded attorney's fees if they win their case. Don't be so confident over that....it's not based upon need.

As for cinder's question....it certainly does seem rather interesting that a man whose divorce was only final in January already has a fiancee....it makes one wonder if there was something going on before the divorce.

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