my finace and i are having trouble making ends meet with his support payments to his ex. i'd like an evaluation of our options, if posible.
here are the particulars:
she is 38 works fulltime and we think she may be cohabitating (started in the separation)
he is 27, enlisted in the navy and was in okinawa when she filed.
he agreed (without representation) to 800 a month for 5 years. the marriage lasted 4 years 8 months and they have no children. she took all of the household goods and he took about 50% more than her of the marital debt. she is using her support payments to pay her credit cards (her part of the marital debt) so can that be counted in his favor as far as splitting the debts and assets equitably?
the judgment was finalized jan 4th.
what are options for setting aside this order or filing an OSC to reduce/eliminate payments.?
can his entitlements (bah and seperations pay) be counted as income? only his base pay shows up on his tax return and entitlements can be taken away by his command. his pay will be reduced if he moves into the barracks.
if she is co-habitating and was at the time of the seperation, can this reduce payments?
since he went pro-per and had no access to a civilian attorney while he was deployed can he seek relief from the service member's protection act? can he (now with representation) set this aside and negotiate a more fair judgment?
we would like to set this aside, but have gotten different opinions on this liklihood.
one is that in cases like this, the judgment will almost universally be set aside since it is grossly unfair and he had no idea what he was getting into...the other says "yeah right" not gonna happen and its a waste of time, he has to pay her period.
under what conditions can he seek relief and which would be a better way to go, OSC for reduction in amount and time-frame or set aside?
any help is greatly appreciated.

There are various options to bring a motion to set aside under the California Family Code. Time is of the essence and he needs to act quickly. The truly unfortunate part of the problem as he muct realize is that it is more costly now to try and set aside and then redo the divorce than it would have been by doing it right the first time around. He is the one who is going to be stuck with the burden of demonstrating why the agreement should be set aside....was there fraud or some other undue infulence? Did he simply make a decision that it was not worth the fight so he agreed to the terms favoring her and now has buyer's remorse?

he just wanted out and she threatened him with the possibility of higher support and alleging adultry because he paid for porn with his credit cards. she threatened to drag this inot court and ruin his career over it. he really had no idea of the ramifications of what he was agreeing to and he was operating under the assumption that she could get half of his income for support based on what JAG told him, so this seemed like a good deal at the time. she wrote the agreement and i know that she wrote it that way inorder to "punish" him. he claims he never told her she could keep all of the household goods (which included several thousands of dollars in tools that were his, some prior to the marriage) she repeatedly called his command alleging that he wasn't paying obligations (he was and proved it) to the point of his facing the possibility of getting kicked out of the school he is in should any other personal matters be brought before his CO.

under what conditions can we make a case for setting aside the order? is it enough to prove that she was living with someone while she was seperated? she didn't put him on the financial decaration, but his address is on the proof of service and is the same as hers.

what are the codes under which this can be filed for a set aside?

this will ultimately save 10's of thousands in support and prevent her from being able to ruin her career, so its worth it in the long run.

Here are the sections of the California Family Code relating to set aside of judgment.
CALIFORNIA CODES
FAMILY.CODE
SECTION 2120-2129




2120. The Legislature finds and declares the following:
(a) The State of California has a strong policy of ensuring the
division of community and quasi-community property in the dissolution
of a marriage as set forth in Division 7 (commencing with Section
2500), and of providing for fair and sufficient child and spousal
support awards. These policy goals can only be implemented with full
disclosure of community, quasi-community, and separate assets,
liabilities, income, and expenses, as provided in Chapter 9
(commencing with Section 2100), and decisions freely and knowingly
made.
(b) It occasionally happens that the division of property or the
award of support, whether made as a result of agreement or trial, is
inequitable when made due to the nondisclosure or other misconduct of
one of the parties.
© The public policy of assuring finality of judgments must be
balanced against the public interest in ensuring proper division of
marital property, in ensuring sufficient support awards, and in
deterring misconduct.
(d) The law governing the circumstances under which a judgment can
be set aside, after the time for relief under Section 473 of the
Code of Civil Procedure has passed, has been the subject of
considerable confusion which has led to increased litigation and
unpredictable and inconsistent decisions at the trial and appellate
levels.



2121. (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.


2122. 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 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.
© Duress. An action or motion based upon duress shall be
brought within two years after the date of entry of judgment.
(d) Mental incapacity. An action or motion based on mental
incapacity shall be brought within two years after the date of entry
of judgment.
(e) As to stipulated or uncontested judgments or that part of a
judgment stipulated to by the parties, mistake, either mutual or
unilateral, whether mistake of law or mistake of fact. An action or
motion based on mistake shall be brought within one year after the
date of entry of judgment.
(f) Failure to comply with the disclosure requirements of Chapter
9 (commencing with Section 2100). An action or motion based on
failure to comply with the disclosure requirements shall be brought
within one year after the date on which the complaining party either
discovered, or should have discovered, the failure to comply.




2123. Notwithstanding any other provision of this chapter, or any
other law, a judgment may not be set aside simply because the court
finds that it was inequitable when made, nor simply because
subsequent circumstances caused the division of assets or liabilities
to become inequitable, or the support to become inadequate.




2124. The negligence of an attorney shall not be imputed to a
client to bar an order setting aside a judgment, unless the court
finds that the client knew, or should have known, of the attorney's
negligence and unreasonably failed to protect himself or herself.




2125. When ruling on an action or motion to set aside a judgment,
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 judgment,
if necessary, for equitable considerations.


2126. As to assets or liabilities for which a judgment or part of a
judgment is set aside, the date of valuation shall be subject to
equitable considerations. The court shall equally divide the asset
or liability, unless the court finds upon good cause shown that the
interests of justice require an unequal division.




2127. As to actions or motions filed under this chapter, if a
timely request is made, the court shall render a statement of
decision where the court has resolved controverted factual evidence.



2128. (a) Nothing in this chapter prohibits a party from seeking
relief under Section 2556.
(b) Nothing in this chapter changes existing law with respect to
contract remedies where the contract has not been merged or
incorporated into a judgment.
© Nothing in this chapter is intended to restrict a family law
court from acting as a court of equity.
(d) Nothing in this chapter is intended to limit existing law with
respect to the modification or enforcement of support orders.
(e) Nothing in this chapter affects the rights of a bona fide
lessee, purchaser, or encumbrancer for value of real property.



2129. This chapter applies to judgments entered on or after January
1, 1993.

does failure to disclose a domestic partner (even a roommate) constitute fraud?
regarding neglegence or incompitence, does this count if he represented himself?
is there anything else that i've said that you can see may give us grounds for a set aside motion?
if not, would we be better off with a OSC to reduce support and time frame based on her cohabitation or reduction in his income? the order does not say anything about modification or cohabitation.
do they have to count entitlements as income, or only taxable income? if he moves into the barracks, his pay will be reduced by about 1600 a month.

The failure to disclose may be a basis to set aside, but how is he going to prove it?
Realistically it makes sense for him to get into a lawyer right away and explore options. Was the spousal support made non modifiable?

we have consulted lawyers, but due to the variance of opinions, i'm not quite sure who to pick. i don't want someone who will say "sure, it can be set aside" just to collect legal fees. i know we need to do something, but have heard so many different opinions on what is likely to work. i'm hoping that by using discovery we can prove that she was living with someone at the time.
we have the proof of service that she filed with the court that states his address and it is the same as hers on the change of address form. further, a private investigator has mentioned that she may be living with a "brandon" the same name on the proof of service but is unable to confirm this without surveillance. with discovery, i'm hoping that we can subpoena rental/lease agreements or other documents that have both people at that address. she has since moved into a one bedroom house so she can't claim that he is a "roommate" anymore.

Time is very critical to any attempt to set aside so he does have to make up his mind and choose one of the options explained to him. Why not make a motion in the alternative? Set aside or if that is denied a modification?

that is what i'd like to do, i figure if she thinks she will loose it all she will be willing to make a deal. who knows, though.
i would rather set aside, but every month that he pays her we fall farther and farther behind. i had to take money out of my IRA to pay the mortgage.
i need to do something, i'm just not sure where to start.
by the way, you are awesome!! i sincerely appreciate all of your help.
my divorce was much easier and i waived all of my claims to support even thought i was married longer. i guess it just bothers me that i know she is doing this to be vindictive and to punish him for percieved wrongs. i know that worse case scenario, she will go away in 5 years, but i wish it would be sooner than that.
i'm afraid of her being able to come back in a few years and ask for more money just when we have kids to support.

am i right in my assumption that we can prove cohabitation through discovery?

Thank you for the kind words. We welcome your continued participation as it would be helpful to the entire community.
Sometimes you have find corroborating evidence of cohabitation through discovery.... sometimes not. You should analyze the evidence you have because he has the burden of proof on the issue.

believe me, if anything i have to say convinces another man to read and ask about what he is agreeing to, them it is well worth it. if i can prevent someone from being taken advantage of by a vengeful ex, then i've done my part.
i guess i'll have to take a chance that we will be able to get the evidence we need.
i know this whole venture is a risk, but i feel better knowing that it is a calculated risk.