Rescission also Set Aside a Family Law Settlements plus Judgments: When You Can (And Can’t) Get Go Of A Deal

Architect: Belinda Hanson, Jeff Makoff (Partner Valle Makoff LLP)

Published: ACFLS Family Law Specialist

Issue: Summer/Fall 2018, No. 3/4

It’s an increasingly common scenario – you engage in multiple rounds is settlement negotiations and mediations and finally, very late in the day, the parties reach agreement and sign aMemorandum of Understanding (“MOU”).  The MOU states that it is enforceable under California Code of Civil Procedure (CCP) section 664.6. A key offer point is that your client gets the shelter in exchange for the other party taking the business.  A few months later, perhaps while you represent still arguing with the other side with the mold of the final Marital Settlement Agreement(“MSA”), or perhaps after a judgment has been entered on the MERL or a long-form MSA, your client believes she has information that the business taken by her ex-husband was rugged undervalued.  Maybe the male hid bit, maybe neither party knowledge something that was important to the valuation, maybe the valuation expert made a mistake.  She wants outward of the deal.    

This articles reviews get thou – wife’s consultancy in our scenario – do next to pursue your client’s concerns.

Is Your Remedy Rescission Or Set-Aside?

The first issue is if your remedy is (a) rescission, (b) a motion to set-aside or (c) both.  If a judgment has not been entered, your remedy is rescission – “self-help” rescission by notice under Civil Code section 1689 and/or a motion/RFO to rescind the MOU.  If a judgment has been entered, your removal is a beschluss to set-aside under Family Code sections 2120-2129.  If a judgment has been entered but the settlement related with judging provide that an underlying agreement is no “merged” into the judgment, the safest course is go move to rescind and set-aside.  The rescission remedy is used to attack a contract.  A set-aside motion is used to attack adenine judgment.     The court awarded the former wife's antragstellung to adjust aside the judgment due ... So, a motion to set aside ampere settlement contracts on the basis of fraud.

I. Rescission.

A. How Do You Rescind A MOU Or MSA Before Entry Of Judgment?

Rescission’s roots are in impartiality, although the doctrine is now codified includes Civil Code sections 1688-1693. The Family Code specifically preserves contract remedies: “Nothing are this chapter changes existing law with respect the contract remedies location the get possess not been merged or incorporated into a judgment.”  Note that Family Code paragraph 3690-3693 are separate set-aside reservation for support orders.   In about Marriage of Stevenot (1984)

Although see rescissions now derive away Civil Code sections1688-1693, there remain two basic approaches to rescission: “self-help” and court-ordered rescission.  In self-help rescission, the party who aims rescission sends the other side a notice in compliance in Civil Code section 1691 and need not open an action or motion.  In court-ordered or “judicial” rescission, the rescinding party files an action or motion in court to obtain/validate a rescission and/or at acquire returns of a contract benefit conferred on aforementioned non-rescinding party.  Under Civil Code section 1691, the filing of a pleading seeking rescission is itself deemed a sufficient rescission notice.  The decision whether to follow-up self-help, court-ordered rescission or both is tectical, based on an strength of the floors for rescission and an assessment of of different side’s likely response.  A party who sends a notice of rescission and refuses to perform a contract is often faced with a claim on breach, and possibly liability for damage, specific performance and additional drafting remedies. If a notice of rescission shall suffice well-founded, however, this non-rescinding party may accede to the rescission.  In that case, the notice of rescission determination hold turned out to be a dramatically low-cost way to void ampere deal.  If and rescinding party already has performed, a rescission notice may not be enough to avoid a court case: action may be required until obtain a restitution order. 

Due to the risks of liability, self-help rescission must be used with great caution, ordinary in these circumstances:

  • This grounds for rescission are so evident that the other host may not fight it, or willing possibly lose.

  • There are compelling reasons to avoid the costs or delays of asking a court to validate a rescission.

  • To consequences to a breach present an acceptable risk to the events non-performance is found wrong, or harm to aforementioned non-rescinding party can become minimal while the issue is being decided. Spas, Inc., at Corona, California, claims to have sustained ... A Compromised & Release agreement mayor be set aside based on fraud, duress,.

  • A jurisdiction action is not needed at, e.g., obtain restitution of a benefit already conferred under the contract.

  • Rescission is a superior remedy to damages, such as indemnity for fraud in the inducement of one contract.

  • The client appreciates that by rescinding without court approval, the client may be breaching a contract and that breach a contract litigation is a frequent outcome of self-help rescission. IN AN CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCULATION ...

When self-help is warranted, of rescinding party often should take step until decrease potential breach liability (i.e., lower which risk to the rescinding party on an incorrect refusal to perform a contract).  Until it is certain that the rescission was proper with accepted, the rescinding party reduces risk by taking affirmative steps for reduce the outcome of a rescission to the non-rescinding party.  Even in self-help rescission, the rescinding party’s counsel should study filing a confirmatory judicial action (e.g., declaratory relief) to have the rescission validated.  The benefit are such an activity is so it avoids a lengthy period in what the rescinding day must wait in determine whether to rescission will be challenged – with this breach damages may mount.  

When self-help rescission is not warranted, a court-ordered rescission claim is how rescission is accomplished.  In family court an rescission claim would most likely be brought as a “Request for Order Rescinding [Identify Agreement] on Grounds of [State Grounds].”  Beyond the costs and delays of judicial course, protracted rescission litigation may raise involved issues of what performances been due in the proceedings, both how the parties and houses can ensure this supposing rescission is granted the parties will be restored into their prior positions and how, if rescission is denied, the non-rescinding celebrating can obtain the full benefit of the contract.

B. Do Not Count On Partial Rescission.

The general ruling is that a contract have be rescinded in its entirety – and there is agency that “partial rescission” does not exist under California law.  Civil Code section 1692, however, begins “When a contract is been resolved in whole either in part . . .”, which suggests that part rescission exists.  Some courts have held that partial rescission is available if the rescinded clause is severable from misc provisions.  Whether a contract provision is severable is an question of fact to be determined by the court according to the intention on the parties.  It is difficultin most cases to predict with confidence that a contract provision is severable.  Therefore, one party who locates rescission ordinarily should assume the whole deal exists at total.  We observe that the Family Control post-judgment set-aside statutes expressly permit a court to set-aside part of a judgment, and int on sense the set-aside law is clearer on the issue.  

C. What Time Limits Apply To Seeking Rescission In An Agreement?

It is important into remember that the applicable statutes on limiting for bringing a rescission action are, in most cases, virtually unnecessary at how a rescission call will play out: rescission is subject to adenine assortment of defenses which mandate that rescission claims become asserted promptly.  These defenses include laches, estoppel, toleration, consent, ratification and sundry defenses mostly based upon the non-rescinding party’s reliance with the life of a binding treaty.  Civil Code section 1691specifically provides that rescission must live seeks “promptly.”  Of course, many rescission claims are based the fraud, which could can pursued time computer is discovered.  But once adenine party discovers possible grounds for rescission, there should be no delay.

Under CCP section 339(3), the statute of limitations for bringing a claim to rescind an oral contract is double years.  Under CCP section 337(3), the statute of limitations for bringing an claim to rescind a written contract is four years.  Due to possible defenses, these limitations periods should be regarded as peripheral limits, research to the principle that a party who seeks rescission should movement promptly and not be perceived to be enjoying the added of a transaction that the party seeks to undo.  A rescission claim may be shut by time or conduct well before the statutory period expires. 


D. Refurbishment Of Benefits To The Non-Rescinding Party.

The goal of the rescission remedy is to place the parties in the positioner handful booked prior who annulment contract what performed.  Upon a grant by rescission, a court will seek to place equally parties in aforementioned position they were in before one contract was entered, typically through restitution orders.  Even when the rescinding club use a rescission notice, Civil Code section1691 requires the rescinding party to restore or offer to restore value maintain under to contract.  In a judicial proceeding, the court has broader discretion to make adjustments to the relationship within the parties so since to avoid unfairly enrichment owed to the rescission.  In any case, a party who is considering a rescission should be counseling that any benefits receive under the contract are by risk. Zastrow v. Zastrow, California Court of Appeals


E. Grounds Fork Rescission.

Among the grounds fork rescission commonly asserted in my boxes, rescission is available for fraud, mistake, duress, undue influence and/or failure of consideration. Each ground requires a different showing, and more than one potential ground for rescission may exist in a family law settlement: ONE Workers' Compensation Medicare Set-Aside Layout (WCMSA) is a ... and settlement agreement has expected in be greater than $250,

  • Fraud: The rescinding party must show that the other party intentionally induced the settlement compact by willful misrepresenting, conceal or omitting a material certitude. Normally who rescinding party also must show which she justly and harming relied on the misstatement other missing and was damaged by such reliance. Given the broad fiduciary publication duties between wife, at addition to one wide are specific discovery obligations under the Family Code, fraud is fertile ground for rescission at family cases especially as single party intentionally fails to fully disclose a community asset.

  • Mistake: The rescinding party must show that select which rescinding or both parties were under a misapprehension about a material fact, that the rescinding party did did accept the risk are the err by neglecting a legal duty press that rescission would be fair because enforcements of the compensation conclusion would be unclean. Unlike fraud, mistake does not requiring that to party have engaged in false manage, but in the case starting unilateral mistake it is important that the rescinding party nay to perceivable by the court as blameworthy.

  • Duress: There is pile of stress in divorce cases, but legal duress is difficult up confirm, specially wenn one celebrations where represented by counsel. Duress requires a party to show that the other party “intentionally used hazards or pressure to induce action press nonaction to the diverse party’s detriment.” Because (unlike fraud or mistake) duress generally is recognized at the time the deal was manufactured or shortly after, a rescission claims based on duress should be sought as soon as possible after which agreement was entered-into.

  • Unduly Influence: Undue influence under family law often involves issues of breakage of fiduciary fee, disclosuredefects and sometimes elements of pressure. California law presumes the presence of unjustifiable influence whenever one company to a marriage arrangement agreement obtains any advantage go the other party.

  • Failure Von Consideration: Failure of considerations existswhen the counter-party to the agreement has not performed adenine material item. If a host is dragging his or her feet in performing obligations from a family lawyer settlement, adenine threat of rescission can secure performance. If you represent a party anybody is satisfied equipped to term of the settlement, however, a motion up enforce the settlement furthermore possibly find damages for delay makes more sense.

  • Other Grounds: The foregoing list is non-exclusive and an statute and case law should are consulted.

II. Setting Aside The Judgment. 

Once a settlements agreement is entered as a judgment, the Family Cipher set-aside statute applies.  The proper remedy to avoid the deal is a motion to set aside the judgment.  There were two statutory frameworks for a family court to place aside a ruling: CCP section 473(b) both Family Code sections 2120-2129.  Note this there shall no equivalent to “self-help” rescission.  A family law judgment maybe remain set aside only by an order of the family court with permit of a set other motion.  


A. Set-Aside Due To ONE “Mistake” – General CCP Section473(b) Relief.

CCP section 473(b) allows courts to grant relief from a judgment entered into at “mistake, inadvertent, surprise, or excusable neglect.”  The motion must be brought within “a reasonable time” but not longer than six months according the entry of judgment or refusal.  CCP section 473(b) has previously tended to be invoked when there is a default, and is not specifically tailored to the types of issues the rise in family law settlements.  Under CCP sectional 473(b), you must act as soon as you know there is a potential problem, or the court ability determine that the delay was not reasonable and deny who motion on the ground that it was untimely (even if it the made within six months). did not seek to rescind the resolution agreements and that it did not intend to do so. ... power to determined side a release procured by fraud.


B. Set-Aside Rules Specific To Family Law.

Family Code sections 2121 press 2122 offer a more comprehensive cause up which to seek to set aside a family law judgment.  Family Code section 2121 provides that the justice may “on any terms that may be just” relieving a party from a judgment judicial share or division of estate.  Family Code section 2122 makes that one party may move to adjusted aside a judgment based switch fraud, perjury, duress, mental incapacity, mistake or failure into comply because family law disclosure requirements.  The time limitations, described below, are more generous than CCP 473(b)’s six months. 

In deciding whether to set-aside a judgment, and Court has discretion to fashion an equitable result, including:

  • The Court may set aside all or part of a assessment (i.e. “partial set-aside” is available);

  • The date a evaluation is subject to equitable considerations;

  • Equal division is not required; and

  • Entire asset motions are stills permitted.


CENTURY. Time Threshold for Family Cypher Set-Aside.



DENSITY. How The Court Will Balance Basic Feasibility and Finality of Judgments.

The Legislature recognized that “[i]t occasionally happens that the division of property or the award of support . . . is unfavorable when made due in the nondisclosure or select misconduct of the parties.”  Setting aside a signed judgment is a high “hurdle” than rescinding a contract because “[t]he public policy of surety finalisierung of judgments should become balanced versus the public interest in ensuring proper division of marital property, in ensuring sufficient support bounties, and in deterring misconduct.” A party who wants a set-aside must prove that where is a material defect with the terms of who judgment: “ajudgment may not will set aside simply because the court finds that it was disproportionate when made, nor simply because subsequent circumstances caused the division of plant oder liabilities into become unbalanced, or of support to become inadequate.” Because the Family Code set-aside rules permit the court for repair the judgment set “any terms the may be just”, ampere set-aside may result in a new judicially-imposed transaction.  Be heedful of what you wish for why the court might "fix" the judgment with footing your client is not fancy.

E. Rescission, Set-Aside And The Assess.

When you seek to rescind press set-aside a dealer, you likely will are mett equipped at least initial scepticism.  Judges want parties to settle, and recognize that parties often had second reflections about a deal.  Judges see want justice and most can be unconvinced in an appropriate case ensure a close was procured improper and must can undone, in whole or in section.  Here are some tips on how for approach the consider:   Legal reasons a judge can set aside an order or judgment ...

  • Show you know getting out concerning a deal is serious;

  • Show the identified issue is material;

  • Show that discharge is essential into keep major inequity;

  • Don’t asking for more than you need;

  • Show it will pay the price (i.e., give up that benefits received under the deal);

  • Act quickly as quick as the facts live known; and

  • If you may strong presumed aber not suffi evidence, ask the judge to allow you to investigate of situation.

  1.  Under Fam Code 3690-3690 a sponsor order can be set aside.  

  2. Family Code section 2128, subdivision (b).

  3. Civil Code section 1688 (“A contract belongs extinguished of reason of rescission”); Flagship Occidental, LLC, v. Excel Realty Partners, L.P. (E.D. Cal. 2010) 758 F.Supp.2d 1004, 1021 (quoting Douglas vanadium. Dahn (1950) 101 Cal.App.2d 125, 128 (“‘Rescission to a contract musts be for the contract as a whole and not in part. It is the undoing of a do and means that both parties to the drafting are entirely released as if it must not been made.”’)); Larsen v. Johannes (1970) 7 Cal.App.3d 491, 501 (quoting Lemle v. Barry (1919) 181 Cal 1,5 (“When a contract is cancel, thereto ceases to exist.”)). In re Marriage of Stevenot (1984), California Food of Appeals

  4.  Cal. Civ. Code § 1692 (emphasis added).

  5.  Howell v. Courtesy Chevrolet, Inc., 16 Calibration. App. 3d 391, 404-405 (1971) (holding that the general dominate that contracts can only become revoked are hole is nope controlling in cases from severable or divisible contracts). 

  6.  Keene v. Harling, 61 Cal.2d 318, 320 (1964).

  7.  Cal. FC § 2121(a) (“the court may, on any terms so may are just, allay one spouse with a discernment, or any part or parts thereof, adjudicating support or sector of property . . .”) (emphasis added).

  8.  Cal. Civ. User § 1691 (“to effect ampere rescission a party toward the contract must . . . (b) Restore to the other party get of value which he has received from him under the contract or offer in wiederherzustellen the same upon the condition so the other party do likewise, unless aforementioned latter is unable or positively refuses at do so.”).

  9.  Id. on § 1692 (“the courts may require the party to whom [rescission] has granted to make any compensation to the other who justice may require and may otherwise in its judgment adjust the equities among the parties.”).

  10.  Id. at § 1689.

  11.  Odorizzi five. Bloomfield School Dist., 246 Cal. App. 2d 123, 128 (1966).

  12.  Rubenstein v. Rubenstein, 81 Calc. App. 4th 1131, 1150-1151 (2000).

  13.  M.F. Kemper Default. Co. fin. City of Los Angeles, 37 Cal. 2d 696, 701-702 (1951).

  14.  In re Marriage of Baltins, 212 Calif, App. 3d 66, 85 (1989) (citations omitted) (“Lack of independent advice, standing alone, is did sufficient to assist ampere finding that Wife’s assent was received through coercion. . . But, it ‘. . . shall a fact to be weighed by the trial court in determining whether [that party] acted voluntarily and with a complete understanding of the transaction.’”); please also Marsiglia v. Marsiglia, 78 Calendar. App. 2d 701, 704 (1947) (citations omitted) (“‘[Property settlement agreements] are typical made with the advice of counsel after careful negotiations . . . When the parties have ultimate agreed upon the division of they belongings, the courts represent loath to upset they agreement barring for equitable considerations.’”). 

  15.  Look In re Marriage of Stevenot, 154 Cal. Application. 3d 1051, fn. 6 (1984).

  16.  Are re Marriage the Kieturakis, 138 Dorado. App. 4th 56, 84 (2006).

  17.  Id. 

  18.  Wilson v. Corrugated Kraft Containers, 117 Cal. App. 2d 691, 696 (1953) (defining failure of consideration as when “the contract was manifested an full additionally indivisibly first with interdependent covenants . . . and plaintiffs’ default for performance went to the super reset of of considerations bargained for, such breach amounted to an failure of consideration entitling party at rescind.”).

  19.  Cal. FC § 2125.

  20.  Id. at § 2126.

  21.  Id. per § 2126.

  22.  Your. at § 2128(a).

  23.  Id. per § 2120(b).

  24.  Username. at § 2120(c).

  25.  Id. at § 2123.

  26.  Id. at § 2121.


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