Requests to Set Aside an Order in a Divorce Case

Steps to File a Request to Set Aside (Cancel) an Order 

To ask the judge to set aside (cancel) the default judgment or other order against you, you will have to ask for a court hearing.  To ask for a court hearing, complete paperwork and file specific forms with the court (see below for how to complete your request).  Make sure you fill out those forms completely and accurately. If you have any questions, talk to a lawyer or your court’s self-help center.  Requests for orders to set aside are complicated, so get help if you need it.

Note: Click for instructions to Respond to a Request for an Order to Set Aside.

Follow these steps:

  1. Fill out your court forms.
    Fill out:

    • Request for Order (Form FL-300). Mark the box “Other” and write in “Set Aside Order” or “Set Aside Default Judgment,” depending on what you are asking the judge to cancel. Then fill out more information on Item 8, and Item 10, “Facts in Support.” Since you are likely to have attachments, you can write “See attached” under Item 10, and explain your facts in the attachments.

    • Memorandum of Points and Authorities–This is a legal document where you identify the law that supports your case. There is no court form for this. You create it on pleading paper. Click for a template you can fill in on your computer.
    • Declaration that describes how the law applies to your situation and why the judge should cancel the judgment or order and let you participate in the case.  You can use the Declaration (Form MC-030) to write out your declaration. It is very important to include detail in your Declaration so the judge understands why your situation fits the law, and why the order should be canceled so you can participate in the case.

    • Proposed Response. If you are asking to set aside a default judgment, attach a Response form for the type of case you have. This is the Response you would have filed had you acted in time and not defaulted. If you win your request for order to set aside the default, the judge will file this as your official legal Response. If you are asking to set aside another type of order, attach a response to whatever request the other party made that resulted in the order. If you are not sure what this would be, ask your self-help center or family law facilitator, or talk to a lawyer.  If you are unable to figure it out, it is possible the judge will still consider your request to set aside the order and explain to you at the court hearing what it is you need to file.

    Note: A Request for Order (Form FL-300) does not necessarily mean the other side has to show up to the court hearing. In some cases, you may want or need the other side to come to court. To find out more about how to make sure they come to court or whether it would be helpful in your case, click to learn about Notices to Attend a Hearing and Subpoenas..

  2. Have your forms reviewed.
    If your court’s family law facilitator or self-help center helps people with a request for order to set aside, ask them to review your paperwork. They can make sure you filled it out properly.

  3. Make at least 2 copies of all your forms.
    Copy all of the forms listed under step 1 (including the attachments). One copy will be for you; the other copy will be for the other party. The original is for the court.

  4. File your forms with the court clerk.
    Turn in your forms to the court clerk. He or she will keep the original and return the copies to you, stamped “Filed.” You will have to pay a filing fee. If you cannot afford the fee, you can ask for a fee waiver.

  5. Get your court date.
    The clerk will also give you a court date and write it on page 1 of your Request for Order (Form FL-300).

  6. Serve the other party with a copy of your Request.
    Have someone 18 or older (NOT you) serve the other party with a copy of your papers and a blank Responsive Declaration to Request for Order (Form FL-320).
    • You can have the other party served by mail or in person.
    • If you have your Request served in person, it must be done at least 16 court days before your court hearing.
    • If you have your Request served by mail, you must do it at least 16 court days before the hearing plus 5 calendar days for mailing. Ask the family law facilitator or self-help center if you are not sure if you can serve your papers by mail.

    Read Form FL-300-INFO for more information on service and click to get more information about “service.”

  7. File your proof of service.
    Have your server (the person or persons who mailed or hand-delivered your papers to the other party) fill out a proof of service (you can use Proof of Personal Service (Form FL-330) or Proof of Service by Mail (Form FL-335)) and give it to you so you can file it with the court. It is very important that your server fills out the proof of service correctly. If possible, have your family law facilitator or self-help center review it to make sure it was filled out properly.

  8. Go to your court hearing.
    Go to your court hearing and take a copy of all your papers and your Proof of Service.

    Read Going to Court to find out how to prepare for your court hearing.

After the court hearing

If the judge makes a decision at the court hearing, he or she will let you know if your request for order was granted or denied. If it was denied, it means the judgment or order you were trying to cancel continues to be the court order. You may still have other legal recourse such as an appeal or a request for reconsideration, so talk to a lawyer for more information.

If the judge agrees with you and cancels the order or judgment, you will be able to file a Response or other proper legal document to allow you to participate in the case and have your day in court.

If the judge makes a decision at the court hearing, the judge will sign a court order. In some courtrooms, the clerk or court staff will prepare this order for the judge’s signature. In other courtrooms, the person who asked for the hearing has to prepare the court order for the judge to sign. If either side has a lawyer, the lawyer will usually be asked to prepare the order.

If you have to prepare this order, you will need to fill out the Findings and Order After Hearing (Form FL-340), and an attachment detailing the orders that the judge made.

Remember, the family law facilitator or self-help center may be able to help you with these forms.

Steps to Respond to a Request to Set Aside (Cancel) an Order

  • Carefully read the papers you received to make sure you understand what court orders the other party is asking for.
  • Note the date, time, and location of the court hearing. They are listed on the first page of the Request for Order. It is very important you go to this court hearing!
  • You must respond to the papers you received if you want the court to know your position. If you do not respond, the court may grant the other side’s request to cancel the existing judgment or order and you will have to start over with getting the court orders you want.
  • If you have a lawyer, take all your papers to your lawyer to handle the case for you. If you do not have a lawyer, talk to a lawyer if you want legal advice, someone to go to court with you, or other legal help. Click for help finding a lawyer. Or ask your court’s family law facilitator or self-help center if they can help you understand what to do.

To respond to a request for order to set aside an order or judgment, follow these steps:

  1. Read Information Sheet: Responsive Declaration to Request for Order (Form FL-320-INFO).

  2. Fill out your court forms
    Fill out:
    • Responsive Declaration to Request for Order (Form FL-320); and
    • A declaration that describes why you believe the other side’s request should be denied. In the declaration, include why you think the law does not apply to your situation and why the judge should not cancel the judgment or order. You can use the Declaration (Form MC-030) to write out your declaration.

  3. Have your forms reviewed.
    If your court’s family law facilitator or self-help center helps people with paperwork related to requests to set aside, ask them to review your paperwork. They can make sure you filled it out properly.

  4. Make at least 2 copies of all your forms.
    Copy all of the forms listed under step 1 (including the attachments). One copy will be for you; the other copy will be for the other party. The original is for the court.

  5. File your forms with the court clerk.
    Turn in your forms to the court clerk. He or she will keep the original and return the copies to you, stamped “Filed.”  You will likely not have to pay a filing fee to file the Responsive Declaration. But if you do and you cannot afford the fee, you can ask for a fee waiver.

  6. Serve the other party with a copy of your Request.
    Have someone 18 or older (NOT YOU) serve a copy of the Responsive Declaration to Request for Order (Form FL-320) and any other papers you attached, on the other party. Generally, you have to have the papers at least 9 days before the hearing. But check the first page of the Request for Order (form FL-300) you received to find out if the court ordered a specific date by which to serve and file your papers.

    You can have the papers served by mail or in person.

    You can have your appers served on the other side before the clerk stamps them— just make sure you do not serve the original.

  7. File your proof of service.
    Have your server (the person or persons who mailed or hand-delivered your papers to the other party) fill out a proof of service (you can use Proof of Personal Service (Form FL-330) or Proof of Service by Mail (Form FL-335)) and give it to you so you can file it with the court. It is very important that your server fills out the proof of service correctly. If possible, have your family law facilitator or self-help center review it to make sure it was filled out properly.

  8. Go to your court hearing.
    Go to your court hearing and take a copy of all your papers and your Proof of Service.

    Read Going to Court to find out how to prepare for your court hearing.

After the court hearing

If the judge makes a decision at the court hearing, he or she will let you know if the other party’s request was granted or denied. If it was denied, it means the judgment or order he or she was trying to cancel continues to be the court order. The other party may still have other legal remedies such as an appeal or a request for reconsideration, so talk to a lawyer for more information if you are served other documents.

If the judge agrees with the other party and cancels the order or judgment, the other party will be allowed to file a Response or other proper document to allow him or her to participate in the case and have his or her day in court. If that happens, move forward with your case as if the other party had answered the petition or request that you filed in the case.

If the judge makes a decision at the court hearing, the judge will sign a court order. In some courtrooms, the clerk or court staff will prepare this order for the judge’s signature. In other courtrooms, the person who asked for the hearing has to prepare the court order for the judge to sign. If either side has a lawyer, the lawyer will usually be asked to prepare the order.

If you have to prepare the order of the court, you will need to fill out the Findings and Order After Hearing (Form FL-340), and an attachment detailing the orders that the judge made.

Remember, the family law facilitator or self-help center may be able to help you with these forms.

© 2017 Judicial Council of California